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In the Matter of the Estate of Ignazio Del Bagno

May 6, 2011

IN THE MATTER OF THE ESTATE OF IGNAZIO DEL BAGNO, DECEASED.


On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. P-89-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2011

Before Judges R. B. Coleman, Lihotz and J. N. Harris.

Ignazio Del Bagno (decedent) died intestate on December 4, 2007, survived by three daughters: plaintiff Antoinette Early, who qualified as the administrator of decedent's estate; defendant Phyllis Rizzuto, formerly Phyllis Del Bagno; and Rose Tittle, who is not a party to the action. In administering the estate, plaintiff filed an action seeking defendant's informal accounting regarding the disposition of decedent's bank depository accounts. The complaint also alleged decedent's transfer of monies to defendant was not voluntary but a result of defendant's undue influence. Following discovery, defendant moved for summary judgment, which was granted.

Plaintiff appeals from the March 12, 2010 summary judgment and dismissal of the complaint. Following our review, we reverse that order because factual disputes, which turn on the parties' credibility, necessitate a full evidentiary hearing.

The facts, viewed in a light most favorable to plaintiff, are taken from the summary judgment record. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Decedent died on December 4, 2007, at the age of ninety. His wife predeceased him but he was survived by his three daughters. From approximately 1970, decedent had lived with defendant. On October 7, 1999, decedent underwent heart surgery and later, on March 30, 2000, suffered a disabling stroke that impeded his ability to properly care for himself. From that time until 2003, decedent's three daughters rotated the provision of his weekly care. Thereafter, decedent returned to defendant's home under the supervision of live-in caretakers who provided round-the-clock care, until his death.

Both parties agree decedent did not hold assets solely in his name, but titled realty in the names of family members and created joint depository accounts. For example, decedent transferred the title of a St. Lucie County, Florida condominium to his three daughters as joint tenants with rights of survivorship. Also, he opened depository accounts at Hudson City Savings Bank (Hudson City) that were held jointly with or designated as payable on death (POD) to Tittle or defendant. Decedent also had a joint checking account with his friend, Anthony Yurksha and other accounts titled jointly with each of his daughters.

Throughout the period when decedent resided with her, defendant aided him in managing his financial affairs. Several depository accounts were created jointly with or POD to defendant at Hudson City, Valley National Bank and Clifton Savings Bank. Plaintiff identifies two accounts that she alleges decedent added defendant's name for convenience and not because he intended to gift the monies to her.

The first was decedent's primary savings account (account number ending in 0818), opened at Hudson City on May 31, 1996. When decedent opened the savings account, it was titled in his name and payable to defendant on his death. Additionally, decedent executed a power of attorney, naming defendant his attorney-in-fact in respect of the account.

The second account identified by plaintiff was a checking account (account number ending in 6646) at the same bank. The checking account was opened in 1996 at the same time as the savings account and titled jointly with defendant. Defendant regularly moved money from decedent's savings account to the joint checking account, from which she paid decedent's ongoing expenses.

The controversy can be narrowed even further, as plaintiff's predominate challenge centers on the deposit and use of the proceeds from the sale of decedent's investment property. On October 25, 2004, decedent sold a rental property in Sewaren realizing net proceeds of $216,173.59. When questioned about the deposit of the proceeds, defendant testified her father would have said, "do what you think is best." Thus, without obtaining specific direction from decedent, defendant deposited the proceeds into the Hudson City savings account then transferred money from the savings account to the checking account. Upon decedent's death, the Hudson City savings account contained a balance of $33,509.55 and the checking account a balance of $8,660.91. Quite simply, plaintiff contends defendant utilized some of the Sewaren proceeds for her own benefit, not for decedent's care, and that decedent would have wanted all of his daughters to share in the proceeds of the investment realty.

In support of this position, plaintiff identified two checks, drawn on the joint Hudson City checking account, which were used to pay defendant's obligations. During the first day of defendant's deposition, she was questioned regarding the management of decedent's accounts and the payment of her personal expenses using decedent's funds.

When first asked, defendant denied she ever used decedent's assets, including joint depository accounts, to satisfy the expenses incurred for her home. Then, when presented with two checks drawn on the Hudson City joint checking account -- one in the amount of $2,895, for her house repairs, and the other in the amount of $2,094.44, for her February 2007 mortgage payment -- defendant stated:

A: Well, I wrote that, so I must have saw [sic] it some time or another. But I did, at one time, . . . I deposited my own money in 'cause I was writing out some checks and I didn't want to go crazy. And I wrote a few checks out. But my own money was deposited into my father's checking account. Yes, it was deposited in there.

Q: Would it be the case that what you're referring to is depositing your own money into a joint account with your father and then writing a check on that account to someone else?

A: That's the only way I would do that. I always deposited my own money. I would never, ever -- in a few instances, I do remember, I was very ...


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