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In the Matter of the Estate of Edward A. Cantor

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 14, 2011

IN THE MATTER OF THE ESTATE OF EDWARD A. CANTOR, DECEASED.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County, Docket No. P-547-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2011

Before Judges Cuff, Sapp-Peterson and Simonelli.

Plaintiff, Cheryl Cantor (Cheryl),*fn1 filed a complaint in this probate matter in which she alleged that family members and business associates of her father frustrated her reconciliation with her father and exercised undue influence over him to disinherit her in favor of others, primarily her brother. Following a thirty-five-day bench trial, the court found no undue influence, but pursuant to Rule 4:42-9(a)(3), awarded Cheryl $399,658 in counsel fees and costs.*fn2 The Estate of Edward A. Cantor ("Estate") appeals from that portion of the March 31, 2009 order awarding those fees and denying its motion for reconsideration of the court's January 23, 2009 order denying its motion to impose frivolous litigation sanctions. Cheryl cross-appeals from that portion of the March 31, 2009 order dismissing her complaint after the court found no undue influence in the execution of Edward's last will and testament of April 6, 2001. We affirm the dismissal of plaintiff's complaint and the denial of the Estate's application for sanctions. We reverse the award of counsel fees to Cheryl.

The evidence presented at trial was as follows. Edward died testate on February 19, 2002. The estimated value of his estate was approximately $90 million, wealth amassed primarily from his ownership and management of commercial and industrial properties in northern New Jersey through twenty-seven entities. He was survived by his third wife, Jane, and two children, Michael and Cheryl. The will left Edward's residuary estate to Michael, expressly disinheriting Cheryl, from whom Edward was estranged for fifteen years before resuming contact with Cheryl sometime in 2000.

The background surrounding the estrangement between Edward and Cheryl stems from a dispute that arose in the early eighties over five properties. The properties were deeded to Cheryl by Edward in exchange for Cheryl's fifty percent interest in real estate known as the Malestrom property. Although Edward conveyed title to the five properties to Cheryl, he continued to manage them until Cheryl decided that she wanted to terminate the management arrangement. In response, Edward, acting as attorney-in-fact, conveyed title to three of the properties to himself. Cheryl brought a declaratory judgment action against her father, seeking a declaration of ownership and management rights over all five properties. Before Cheryl filed her complaint, Michael tried to dissuade her from pursuing it, warning his sister that their father would disinherit her. Cheryl told Michael that she intended to proceed with the litigation despite knowing that she would make her brother "a rich man" in doing so.

In response to Cheryl instituting the lawsuit referred to as the Five Properties litigation, Edward took away the car he leased for her, cancelled the health and automobile insurance he paid on her behalf, and foreclosed on a mortgage he held on the property in which she lived. Cheryl prevailed in the litigation. The court ordered Edward to pay Cheryl $1.3 million in compensatory damages and $200,000 in punitive damages. Cheryl's husband, Tom Trabocco, with whom Edward had previously engaged in extensive business enterprises until serious hostilities arose between the two men, took the judgment check Edward paid, enlarged it, and had it displayed on a billboard near one of the five properties.

As a result of the Five Properties litigation, Edward ceased speaking to Cheryl, as did Michael. Edward considered Cheryl to be dead and, according to Michael, had a rabbi give a "Kaddish," a prayer for the dead, for Cheryl.

Cheryl's adversarial relationship with Edward did not end with the conclusion of the Five Properties litigation. She sought to recover civil remedies against Edward in accordance with New Jersey's RICO*fn3 statute. In a court proceeding, she referred to her father as a thief. Cheryl and Tom arranged, through a deputy attorney general who was a friend of Tom's, to have Edward arrested on criminal RICO charges at his home at 5:00 a.m. As Edward was led out in handcuffs, Cheryl and Tom sat in a car across the street and watched, having been tipped off that the arrest would take place. They then drove to Edward's office and watched as the police searched it. Cheryl did not deny any of these incidents, but testified that Tom, from whom she was eventually divorced, "had a nine millimeter pulled to [her] head" and that she "wouldn't do anything against what he said[.]"

Edward accused Cheryl of trespassing on his Florida estate and got a restraining order against her. He also accused her of harassing his employees and business associates and slandering him by putting letters in the mailboxes of his Florida neighbors. Edward also believed that Cheryl cancelled a flight he had scheduled from Los Angeles to New York as he was heading home from Australia, leaving him stranded.

Edward asked his third wife, Jane, whom he married in 1992, to help him compile a list of all the things Cheryl had done over the years to hurt him, and he kept the list either under his desk blotter or in his wallet until he eventually asked Jane to hold onto it. She later produced the list at her deposition. Edward showed the list to his longtime personal secretary, Charlene Jacobs. Charlene's husband, Charles Jacobs, who was Edward's accountant and designated as a co-executor of his estate, testified that Edward read the list at a dinner not long before his death. Charles stated that "[i]t was painful" when the list was read, and following the reading, Edward announced that he would not change his will, as too many things had happened.

Prior to the Five Properties litigation, Edward had executed a will, leaving his residuary estate in trust for Cheryl and Michael. In April 1991, however, Edward executed a will, leaving nearly the entire estate to Michael and making no mention of Cheryl. One year earlier, Edward had executed a notarized directive with a message to be read at his funeral, which ordered Cheryl, Trabocco, and Edward's brother and sister-in-law, Saul and Mabel Cantor, to leave the funeral or be removed by the police, "[s]ince you saw fit to sever your family connections with me during my lifetime."

Several months after executing the April 1991 will, Edward executed another will in which he gifted Cheryl ten dollars, stating that he "intentionally [made] no other provision for her[.]" In September 1997, Edward executed a new will in which he left his residuary estate to Michael and "intentionally [made] no provision for [his] daughter, Cheryl[.]"

Cheryl and Trabocco separated in 1991, and in 1998 Trabocco filed for divorce. As part of the dissolution action, he sought equitable distribution of the five properties, which Cheryl resisted. Cheryl was living in Italy at the time and, in early 1999, started to make overtures to her father in an effort to reconcile with him. She sent letters to him apologizing for her previous actions and attributing her behavior to "passivity and intimidation" by Trabocco. Edward did not respond to the letters but forwarded them to Michael, who likewise did not respond to Cheryl.

On June 16, 1999, Edward executed another will. The will was prepared by attorney Alan Adler, who had begun the planning of the will in March 1999, after he had been contacted by Charles, who worked in the same building as Adler. Charles looked at the will and discussed the tax consequences with Adler at Edward's behest. According to Adler, Charles was Edward's "point man" and was aware of all aspects of the 1999 will through meetings between the three of them. Michael was the sole residuary beneficiary of the June 1999 will. The will also gave Jane the option of accepting the provisions offered under her prenuptial agreement or the will, whichever were more favorable. The will stated, "I intentionally make no provision in this will for my daughter," and Adler recalled conversations with Edward regarding his continuing intention to disinherit Cheryl.

The execution of the 1999 will was videotaped and the tape was played in court. On the tape, Edward said that he was "ashamed" of Cheryl, given that she never had a job, never finished school, and "always quit in the middle of things." He set forth his view of the situation underlying the Five Properties litigation and the other transgressions Cheryl had committed against him. Edward indicated that his relationship with her had "totally deteriorated" and that the two had not spoken since 1985. He noted that Cheryl had tried to contact him but he "refused to acknowledge anything in connection with her[.]" He disinherited her based on "all of her actions accumulatively over the period of [fifteen] years." Edward stated, "I am very adamant about my decision to disinherit her . . . . There are so many more things that developed over the years. I just picked out a few of the major incidents . . . [.]

[I]n no way is she to inherit anything or any part of the will[.]" Edward also made clear in the video that Jane never sought a greater portion of his assets or to withhold them from Cheryl. He also indicated that as to Michael, "he stays completely out of it." Michael testified that he did not attend the will signing, did not know it had been executed, and did not receive a copy of it.

In September 1999, Edward sued Cheryl over a right-of-way on a business property, which Cheryl testified he withdrew one year later. She continued to attempt to contact her father. She testified that it was her Uncle Saul, Edward's brother, who was able to arrange a meeting between Edward and her divorce attorneys that ultimately resulted in Edward signing a certification in February 2000 concerning the Five Properties litigation:

This litigation, and the events surrounding it caused a serious rift in my relationship with Cheryl. While it may be too early to apply the old expression "time heals all wounds[,]" Cheryl and I have started speaking with each other again, and are moving forward towards repairing the deep rift which had existed between us for many years now.

According to Cheryl, one day in early 2000, she waited outside her father's office, and when he exited the office, she greeted him. The two subsequently went to an office underneath the building where they "started talking . . . about everything." He asked for her contact numbers and told her to only call him at the office because he did not want Jane or Michael to know that they had re-established contact, as he was afraid they would "retaliate." After Cheryl explained why she had acted the way she had in the Five Properties litigation, Edward said that although it was difficult, he could forgive her. Before they parted, Edward gave her a "big . . . bear hug and [a] kiss." Many times after that, he told her that he loved her.

Cheryl continued to see Edward for lunch when she was in New Jersey and spoke to him by phone regularly. At one of the lunches, Cheryl's Italian boyfriend joined them, and photographs taken of the three of them were put into evidence. When Cheryl talked of marrying her boyfriend, Edward said that he would come to Italy for the wedding.

Cheryl testified Edward told her that if she called the office and Charlene answered, that she should hang up. Charlene admitted that Jane instructed her to block Cheryl's calls. However, she claimed that when she told Edward of Jane's instruction, he told her that if Cheryl called, Charlene should let him know, and he would decide whether he would speak to her. Jane admitted that she told Charlene not to put through Cheryl's calls, but claimed that it was at Edward's request, although she admitted that Edward was "tentatively" prepared to resume a relationship with Cheryl. At another point in her testimony, Jane said that she instructed Charlene not to put through calls only in June 2000, after Edward was hospitalized. Longtime employee, Rose Frank, testified that she answered the office phone if Charlene was not there and connected Cheryl with Edward two or three times. Charlene never instructed her not to take Cheryl's calls. Edward's longtime bookkeeper, Dottie Mnich, testified that Cheryl called the office "many times."

In May 2000, Edward asked Cheryl to reach out to Michael because he "wanted peace before he died[,]" so she wrote Michael a letter seeking contact, but he did not respond. Cheryl testified that after their "reconciliation," Edward told her that she had nothing to worry about, as he had every intention of putting her in his will, and she and Michael would be treated equally.

In June 2000, Edward was hospitalized with cardiac problems. According to Jane, Saul and Mabel came to visit Edward the day before Father's Day. Jane, who admittedly "didn't care for" Mabel and "wasn't impressed" with Saul, testified that Mabel kept "badgering" Edward about Cheryl when Edward said he did not want to see or speak to her, and about hiring a private duty nurse. The next day, Saul returned to the hospital without Mabel and again "badgered" him about the private duty nurse and about "putting Cheryl back into his will." Edward asked Saul to leave, but Saul refused. When Jane asked Saul to leave, he told her to "shut up." After Saul again refused to leave, Jane went to the nurses' station to get assistance. When she returned, Saul "struck" her with his cane. Security escorted Saul out.

The next day, Saul wrote a letter to Edward, which was delivered to Edward in the hospital. With Jane present, Edward made hand-written comments on the letter. For instance, when Saul wrote, "I strongly feel that you should meet with Cheryl and make provisions for her in your will[,]" Edward wrote, "I did already! On tape, in writing & verbally. Zero." Jane denied attempting to influence Edward's writings on the letter. After the "Father's Day incident," the parties obtained mutual restraining orders and never spoke again.

Cheryl and Edward met in person for lunch on September 22, 2000, which turned out to be their last meeting before Edward's death in 2002. Six days following this last meeting, Charles told Adler that Edward wanted to speak with him about taking steps to insure his recent meetings with Cheryl did not "undermine his intent to disinherit her." The next day, Adler spoke with Edward on the telephone and made notes that said: "Make very strong!! despite dinners & meetings --" Adler "vivid[ly]" recalled the phone conversation in which Edward made "very clear" that his meetings with Cheryl were "not to be construed in any way as modifying his intention to disinherit her."

Adler prepared the codicil on October 4, 2000, and gave it to Charles on October 6, to give to Edward. Although Charles initially denied having any knowledge of a codicil, he later remembered that Edward wanted to make the codicil to "reemphasize and solidify" that he did not want Cheryl to be a beneficiary. Robert Fair, another longtime employee of Edward who also described himself as Edward's friend, testified that he had been encouraging Edward to reconcile with Cheryl, but also recalled Edward telling him that he was going to execute the codicil so that no one, including him, felt that the meetings meant that he had changed his feelings regarding Cheryl.

Meanwhile, on October 2, 2000, Edward was admitted to the hospital with "life-threatening" sepsis after developing a fever on September 30. When he arrived at the hospital, he was "confused," "non-verbal" and, according to his treating cardiologist, George Demidowich, "at death's door[.]" Edward remained in the hospital until October 17, and was on intravenous antibiotics for six weeks. Dr. Demidowich said it was usual for a patient in Edward's condition on October 2 to have been "normal" two days prior to hospitalization. According to Dr. Joshua Kaplan, a nephrologist and expert witness who testified on Cheryl's behalf, and also according to Dr. John Sensakovic, a Ph.D. in clinical microbiology who testified as the Estate's expert, if Edward had been suffering from sepsis on September 28 or 29, he would not have lived until October 2, when he was admitted to the hospital. When Dr. Demidowich examined Edward on October 30, he found no mental problems.

Edward executed a codicil on October 31, 2000, which referenced Cheryl's disinheritance under his June 16, 1999 will, and stated that the codicil was to "reaffirm in the strongest possible way" that "no portion of the assets of my estate shall be distributed to . . . my daughter[.]" Edward stated further in the codicil:

I have determined that it is necessary for me to reaffirm and reinforce in the strongest terms my decision to completely disinherit my daughter . . . because within the recent past on several occasions I have met with my daughter . . . and on a few of those occasions I have had lunch with her and I do not want those meetings with my daughter or any future meetings with my daughter to be construed or interpreted in any way or to otherwise serve as support for the position that my determination to disinherit my daughter . . . no longer represents my intention.

To the contrary, my decision and determination to disinherit my daughter . . . remains steadfast and unmodified.

Edward was diagnosed with chronic renal failure and commenced dialysis treatment in November 2000. He underwent treatment twice each week. The treatments primarily left him fatigued, according to Jane and Edward's office staff, but he continued to work full-time on non-dialysis days and half-days on the days of his treatment. No one, including his treating nephrologist, who saw Edward weekly, or his cardiologist, who saw Edward monthly, observed any deterioration in Edward's mental faculties once Edward started dialysis.

On April 6, 2001, Edward executed his final will, which revoked the 1999 will and codicil, and which stated:

I intentionally make no provision in this my Will for my daughter . . . . In the event that at any time or times subsequent to the date on which I am executing this my Will I shall meet with my daughter . . ., any such meeting or meetings with my daughter . . . shall not be construed or interpreted as a modification to any extent of my determination to disinherit my daughter[.]

The will also referred to the videotaping of June 16, 1999, and stated it was Edward's "express intention and direction that all of such discussions and explanations [shall] be utilized to the extent which may be necessary after my death to clarify and understand the distributive plan which I have established in this Will." He did not videotape the 2001 will because, according to Jane, he did not want to spend the money.

Among other gifts, Edward provided $10,000 each to Charlene Jacobs, Rose Frank, and Robert Fair, and then devised the remainder of his estate to Michael. Michael and Charles were named co-executors, and Charles was named trustee of a marital trust for Jane. The will provided compensation of $100,000 to Charles, as co-executor and, as trustee, the greater of a commission allowed by a court or .05 percent of the assets in the trust.

Neither Adler nor Charles attended the signing of the April 6, 2001 will, and Charles insisted he had no input into its execution. Adler never received an executed copy of the will. Adler said Edward was "very bright," "grasped things very quickly[,]" and had a "strong ego[.]" Adler described Edward as a "frustrated lawyer" who reviewed every document that Adler prepared, word for word, line by line, fought with Adler over language, and questioned why certain words or expressions were used.

Adler never saw Michael or Jane attempt to influence Edward about any will, and said that Edward was "not the kind of man that can be influenced by anybody." Adler admitted speaking to Michael on the phone five times between January and April 2001 regarding a proposed "family limited partnership agreement" and an "irrevocable family trust" and billing the calls to Edward.

Adler characterized these calls as "academic" and "conceptual" and not focused on Edward's specific plans.

Adler testified that he never saw Charles try to influence Edward, despite Charles's presence at the 1999 will signing and his frequent meetings with Charles and discourse about the will. Adler indicated that none of the language in the June 1999 will, the codicil, or the 2001 will came from Charles. Adler stated, "I'm not sure either of us [Adler or Charles] could persuade [Edward] to do anything."

Charles testified that although he was aware of the disinheritance provisions, he and Edward "did not discuss family business." Charles described Edward as the "brightest, most intelligent guy I ever met in my entire life." He indicated Edward could also be "an absolute terror" and a "very overpowering guy." He explained that it was difficult to reason with Edward, and once he made up his mind, that was the way it would stay, and Edward was "not going to change his mind [about Cheryl]." Charles testified that despite Edward's illness, he saw no mental confusion or memory loss in him and never saw Michael trying to exert undue influence over Edward.

Hope Cantor, Saul's daughter and Edward's niece, testified that she visited Cheryl in Italy in July 2001. While there, she talked to Edward on the telephone twice, and when she told Edward that "things were hard" financially for Cheryl, Edward said, "[D]on't worry, I'll take care of her." In a certification submitted during the course of the pretrial proceedings, Hope contended that Edward was "very much controlled by his wife, Jane, who kept him isolated from my parents and Cheryl." She certified that Edward had been abandoned as a child and "was terrified of being abandoned and dying alone." She admitted, during her testimony, that she based that statement on what her father told her and not through personal discussions with Edward.

Michael testified that he did not know his father was preparing a will in April 2001, was not present at its signing, and never saw a copy of this will until after his father's death. He denied ever attempting to influence Edward in the disposition of his assets. Although Michael was the residuary beneficiary of his father's will, he testified that their relationship, during the last three years of Edward's life, was not close. He briefly worked for his father in the seventies and eighties, but after his father wanted him to renege on a lease agreement, he stopped working for him. Independent of his father, he became a successful businessman through his commercial real estate acquisitions and other ventures. He testified that his father "lied" to him and to others and he also believed that his father stole from him. He never sued his father because he knew that in doing so, his father would disinherit him.

According to Michael, in the latter part of 2001 and early 2002, tensions between him and his father arose over several issues: (1) his claim that his father owed him between $40 to $45 million, plus interest; (2) a dispute over their respective interests in ELM Realty, which they owned along with a business partner, Leo Masin, who died; and (3) Edward's refusal to undertake estate planning measures that would reduce estate taxes upon his death.

In her testimony, Jane denied exerting any undue influence over Edward regarding his wills. She explained that she was "taken care of" so "why would I be concerned?" She indicated that in late December 2001, Edward expressed his dissatisfaction with Michael's behavior and told her that if he did not "straighten up and fly right" he would take him out of his will. He also told Jane that he no longer trusted Adler and had scheduled an appointment with Citibank to change his will, at which time, he intended to disinherit Michael. The meeting was scheduled for February 20, 2002. However, Edward died on February 19. Michael testified that he was aware of his father's scheduled appointment at Citibank and that the purpose of the appointment was not to disinherit him but to restructure a loan and to obtain another loan.

The April 6, 2001 will was admitted to probate on March 5, 2002. Charles served as accountant for the Estate and Michael's personal business interests until November 2002, when animosities between him and Michael resulted in a severance of ties. Adler represented Michael as co-executor of the Estate from Edward's death to at least the time of his testimony at trial. Adler never represented Michael prior to Edward's death.

On appeal, the Estate raises the following points for our consideration:

POINT I

R[ULE] 4:42-9(a)(3) DOES NOT PERMIT A FEE AWARD TO A CONTINGENT FEE ATTORNEY.

POINT II

FRIVOLOUS LITIGATION SANCTIONS SHOULD HAVE BEEN AWARDED TO THE ESTATE.

A. PLAINTIFF'S BAD FAITH FILING OF COMPLAINT, ADMITTEDLY WITHOUT INVESTIGATION OR EVIDENTIARY SUPPORT.

[1.] THE TRABOCCO CERTIFICATION LAID BARE PLAINTIFF'S PRE-FILING SCHEME TO EXTORT MILLIONS OF DOLLARS FROM HER BROTHER AND THE ESTATE.

[2.] PLAINTIFF'S PRE-FILING KNOWLEDGE OF THE FALSITY OF HER TRUMPED-UP CLAIMS.

[3.] PLAINTIFF'S CONTINUANCE OF THIS LAWSUIT AFTER DISCOVERY ALSO WARRANTS THE IMPOSITION OF SANCTIONS.

POINT III

IN ALL EVENTS, PLAINTIFF WAS NOT ENTITLED TO AN AWARD OF COUNSEL FEES PURSUANT TO R[ULE] 4:42-9(a)(3).

In her cross-appeal, Cheryl raises the following points:

POINT I

THE TRIAL COURT'S FAILURE TO CREATE AND APPLY THE PRESUMPTION OF UNDUE INFLUENCE AND FAILING TO SHIFT THE BURDEN OF PROOF TO THE ESTATE WAS A MISAPPLICATION OF THE LAW. THE ESTATE'S FAILURE TO SUSTAIN ITS SHIFTED BURDEN OF PROOF SHOULD HAVE RESULTED IN A JUDGMENT FOR PLAINTIFF. [(Emphasis removed).]

A. THE STANDARD OF APPELLATE REVIEW IS DE NOVO.

B. THE LEGAL STANDARD FOR PLAINTIFF ESTABLISHING UNDUE INFLUENCE REQUIRED ONLY A PREPONDERANCE OF THE EVIDENCE OF CONFIDENTIAL RELATIONSHIPS AND SUSPICIOUS CIRCUMSTANCES.

1. THE COURT CORRECTLY FOUND CONFIDENTIAL RELATIONSHIPS.

a. THE COURT FOUND THAT MICHAEL AND EDWARD "CLEARLY[] WERE IN A CONFIDENTIAL RELATIONSHIP WITH HIS FATHER," "CLEARLY HAD THE MOST SIGNIFICANT RELATIONSHIP," "CLEARLY HAD THE MOST TO GAIN," "CLEARLY CONTACTED CHARLES JACOBS AND ALAN ADLER," AND "THROUGH THOSE RELATIONSHIPS, SUSPICIOUS CIRCUMSTANCES."

b. THE COURT FOUND CHARLES JACOBS HAD CONFIDENTIAL RELATIONSHIPS WITH EDWARD, MICHAEL AND JANE[,] WHICH WERE INTERTWINED, AND RECEIVED BENEFITS UNDER THE WILL.

c. JANE CANTOR WAS IN A CONFIDENTIAL RELATIONSHIP AND RECEIVED GREATER BENEFIT UNDER THE WILL.

d. ALAN ADLER HAD CONFIDENTIAL RELATIONSHIPS WITH EDWARD CANTOR, CHARLES JACOBS AND MICHAEL CANTOR AND ULTIMATELY RECEIVED BENEFITS.

e. ADLER'S CONFIDENTIAL RELATIONSHIP, WHILE NOT AS LENGTHY OR PERSONAL AS JACOBS'[S], WAS SUFFICIENT UNDER THE LAW.

2. SUSPICIOUS CIRCUMSTANCES NEED ONLY BE "SLIGHT." UNDUE INFLUENCE NEED NOT BE BY DIRECT EVIDENCE, BUT "MAY BE INFERRED OR SHOWN BY FACTS AND CIRCUMSTANCES IN EVIDENCE."

a. THE COURT FOUND "SOME SUSPICIOUS CIRCUMSTANCES" BASED ON ADLER'S ADMITTED RELATIONSHIP WITH MICHAEL CANTOR BOTH BEFORE AND AFTER THE TESTATOR'S DEATH.

b. AN UNNATURAL WILL, WHICH

FAILS TO PROVIDE FOR THE NATURAL OBJECTS OF THE BOUNTY OF THE TESTATOR, IS A "FORMIDABLE" CIRCUMSTANCE IN RAISING THE SUSPICION OF UNDUE INFLUENCE.

c. FOLLOWING THE FATHER'S DAY INCIDENT, EDWARD CANTOR WAS "EXCLUDED FROM THE SOCIETY" AND ISOLATED FROM HIS DAUGHTER AND OTHER FAMILY MEMBERS.

d. SUSPICIOUS CIRCUMSTANCES SURROUNDING THE FORMATION, EXECUTION AND POSSESSION OF THE CODICIL ABOUND IN THE RECORD.

i. THE CODICIL ORIGINALLY PRODUCED BY THE ESTATE WAS FORGED BY CHARLENE JACOBS.

ii. JACOBS[] GAVE CRITICAL TESTIMONY (DIAMETRICALLY OPPOSED TO ADLER'S) THAT HE NEVER SPOKE TO ALAN ADLER ABOUT THE CODICIL,

I.E., AS TO WHAT TO PUT INTO THE CODICIL OR DIRECTION TO PREPARE IT FOR EDWARD CANTOR. [(Emphasis removed).]

iii. ADLER KNEW VIRTUALLY NOTHING ABOUT THE RESUMPTION OF THE RELATIONSHIP BETWEEN CHERYL AND HER FATHER.

iv. ADLER WAS NOT INFORMED OF EDWARD CANTOR'S MEDICAL HISTORY DURING THE PERIOD HE WAS PREPARING THE CODICIL, OR AT THE TIME OF ITS EXECUTION, OR AT THE TIME HE WAS PREPARING THE WILL, OR AT THE TIME OF ITS EXECUTION OR AT ANY TIME PRIOR TO EDWARD CANTOR'S DEATH. [(Emphasis removed).]

v. EDWARD'S INTENTION TO DISINHERIT CHERYL OR INCORPORATE THE CODICIL INTO THE 2001 WILL[] WAS NEVER DISCUSSED WITH ALAN ADLER. THE TIMING OF THE CODICIL DURING A PERIOD EDWARD WAS COMATOSE AND NON-VERBAL IS SUSPICIOUS. THE IN FUTURO PROVISIONS OF THE CODICIL AND WILL ARE OF DOUBTFUL LEGAL VALIDITY.

e. THE USE OF A "POINT MAN" TO COMMUNICATE THE WISHES OF THE TESTATOR TO THE ATTORNEY PREPARING THE WILL WAS HIGHLY UNUSUAL.

f. THE PAUCITY OF EVIDENCE OF DISCUSSIONS REGARDING CHERYL CANTOR OR HER DISINHERITANCE IS HIGHLY SUSPICIOUS.

i. ADLER'S VOLUMINOUS, DETAILED NOTES MENTION CHERYL ONLY ONCE.

ii. ADLER'S DETAILED NOTES ABOUT THE FORMATION OF THE CODICIL REFLECT THAT THERE ARE NO NOTES ON SEPTEMBER 29, 2000[,] THE DATE OF AN ALLEGED CONVERSATION WITH EDWARD CANTOR. [(Emphasis removed).]

iii. THERE WAS ALSO A COMPLETE LACK OF DISCUSSION OF CHERYL'S DISINHERITANCE BY JACOBS WITH ALAN ADLER OR WITH EDWARD CANTOR.

g. THE FORMATION, EXECUTION AND SUPERVISION OF THE PROBATED WILL AND THE UNUSUAL ROLE JACOBS PLAYED IN THE FORMATION WERE ACKNOWLEDGED BY ADLER.

i. ADLER FAILED TO SUPERVISE THE EXECUTION OF THE 2001 WILL, DID NOT HAVE IT VIDEOTAPED, AND ENTRUSTED THE WILL AND ALL OF ITS COPIES TO CHARLES JACOBS.

ii. THE COURT FOUND ADLER "WAS AWARE" OF MICHAEL'S CLAIMS OF "DEBT" ENTITLING HIM TO THE ENTIRETY OF THE COMMERCIAL HOLDINGS OF HIS FATHER, AND THAT ADLER WAS PRESENTED BY MICHAEL WITH "ESTATE PLANS" FOR EDWARD.

iii. JACOBS CONFIRMED MICHAEL DISCUSSED HIS DEBT WITH ALAN ADLER AND HIMSELF IN DIRECTING EDWARD'S ESTATE PLANNING DURING THE SAME TIME JACOBS AND ADLER WERE PREPARING EDWARD CANTOR'S PROBATED WILL.

h. JANE CANTOR'S TESTIMONY ON THREATS MADE BY MICHAEL CANTOR TO HIS FATHER, AND "FEARS" EDWARD HAD OF WHAT MICHAEL MIGHT DO TO EDWARD, WERE HIGHLY PROBATIVE BUT WERE NOT CONSIDERED OR APPLIED TO THE LAW.

i. THE FINAL INTENT OF THE TESTATOR WAS TO EXCLUDE MICHAEL FROM THE WILL.

3. UPON FINDING BOTH CONFIDENTIAL RELATIONSHIPS AND SUSPICIOUS CIRCUMSTANCES, THE PRESUMPTION OF UNDUE INFLUENCE ARISES AND THE BURDEN OF PROOF SHIFTS TO THE ESTATE[.] [T]HE COURT BELOW, BY FAILING TO APPLY THE PRESUMPTION OR SHIFT THAT BURDEN OF PROOF TO THE ESTATE, MISAPPLIED THE LAW.

a. THE COURT REQUIRED PROOF OF "TOTAL DOMINATION."

b. THE COURT'S MISAPPLICATION OF THE LAW.

i. WHEN THE COURT FINALLY ADDRESSES THE LEGAL EFFECT OF THE CONFIDENTIAL RELATIONSHIP BETWEEN MICHAEL CANTOR AND EDWARD CANTOR, THE COURT'S FINDINGS REJECT THE ESTATE'S DEFENSES AND IGNORE SUBSTANTIAL EVIDENCE OF MICHAEL'S FINANCIAL DOMINANCE OVER EDWARD.

ii. THE COURT CONCLUDED[,] WITHOUT SUPPORT IN THE RECORD[,] THAT THE ESTATE SOMEHOW REBUTTED THE PRESUMPTION OF UNDUE INFLUENCE.

c. THE ESTATE FAILED TO SUSTAIN ITS LEGAL BURDEN OF PROOF.

[i.] THE COURT BELOW MISSES THE ["]REAL ISSUE" AND THE "REAL QUESTION" IN THE CASE.

[ii.]THE COURT ERRONEOUSLY ADOPTED THE VIDEO OF THE REVOKED 1999 WILL, WHICH NO LONGER REFLECTED THE RELATIONSHIP BETWEEN EDWARD AND CHERYL OR EDWARD'S HEALTH STATUS.

d. UNDUE INFLUENCE MAY BE ACHIEVED BY EITHER COERCION OR PEACEFUL MEANS, I.E., YIELDING FOR THE SAKE OF PEACE.

[i.] THE ESSENCE OF THE PLAINTIFF'S CASE WAS "A DESIRE TO KEEP THE PEACE." THE COURT FAILED TO APPLY THE LAW.

[ii.]THE COURT FAILED TO APPLY THE LEGAL "POLESTAR" -EDWARD'S FINAL INTENT TO REMOVE MICHAEL FROM THE WILL.

POINT II

THE COURT'S RELIANCE UPON LAY OPINION TESTIMONY TO SUPPORT ITS ULTIMATE CONCLUSION THAT EDWARD CANTOR WAS INCAPABLE OF BEING UNDULY INFLUENCED AND ITS APPLICATION OF THE LAW REQUIRING DOMINATION IN EVERY UNDUE INFLUENCE CASE IS REVERSIBLE ERROR. [(Emphasis removed).]

A. RELIANCE ON LAY OPINIONS WHICH LACKED EITHER FOUNDATION OR COMPETENCE.

B. THE INCAPABILITY-OF-BEING-INFLUENCED DEFENSE.

C. EXCUSING MICHAEL'S FINANCIAL DOMINANCE AND ADMITTED ATTEMPTS AT INFLUENCING THE DISPOSITION OF EDWARD'S ASSETS, BY REPLACING IT WITH "PERSONALITY," MISAPPLIES THE LAW.

D. THE PLAINTIFF'S BURDEN OF PROOF DID NOT REQUIRE A PREPONDERANCE OF THE EVIDENCE OF DOMINATION OVER EDWARD CANTOR.

E. DOMINATION IS NOT REQUIRED TO INVOKE A PRESUMPTION OF UNDUE INFLUENCE WHERE THERE IS A CONFIDENTIAL RELATIONSHIP AND SUSPICIOUS CIRCUMSTANCES.

POINT III

PLAINTIFF WAS DEPRIVED OF PROCEDURAL DUE PROCESS BY THE TRIAL COURT. [(Emphasis removed).]

A. THE TRIAL COURT'S BIZARRE TRIAL PROCEDURE IN ALLOWING THE ESTATE TO CROSS[-]EXAMINE WITNESSES OUTSIDE THE SCOPE OF PLAINTIFF'S DIRECT EXAMINATION MADE THE SHIFTING OF THE BURDEN OF PROOF IMPOSSIBLE.

B. THE COURT FAILED IN ITS ESSENTIAL FACT-FINDING FUNCTION OF MAKING CREDIBILITY FINDINGS AS TO ANY WITNESSES OTHER THAN MICHAEL AND CHERYL.

1. THE COURT FOUND MICHAEL'S TESTIMONY ON LACK OF CONFIDENTIAL RELATIONSHIP TO BE "NOT CREDIBLE."

2. IT IS ONLY CHERYL'S TESTIMONY ABOUT THE PROMISE TO PUT HER INTO THE WILL (NOT ESSENTIAL IN AN UNDUE INFLUENCE CASE) THAT THE COURT FOUND NON-CREDIBLE.

3. THE COURT SEEMINGLY FORGOT ITS OWN ANALYSIS IN UTILIZING CHERYL'S TESTIMONY IN THE DIVORCE ACTION AS AFFECTING HER CREDIBILITY AND "TRYING TO HAVE IT BOTH WAYS."

C. FACTUALLY EVALUATING THIRTY-FIVE DAYS OF TRIAL TESTIMONY SPREAD OVER SIX MONTHS MADE IT IMPOSSIBLE FOR THE TRIAL COURT TO MAKE ESSENTIAL FACTUAL FINDINGS WITHOUT COUNSEL'S SUBMISSION OF DOCUMENTED FINDINGS OF FACT AND CONCLUSIONS OF LAW.

POINT IV

THE COURT ABUSED ITS DISCRETION IN (1) FAILING TO CONDUCT A COMPLETE ANALYSIS OF THE EXPERT WITNESS TESTIMONY AND (2) CONDUCTING AND RELYING UPON ITS OWN PSYCHOANALYSIS OF EDWARD CANTOR. [(Emphasis removed).]

A. THE COURT CREDITED THE PLAINTIFF'S EXPERT, JOSHUA KAPLAN, AS "CLEARLY A RESPECTED NEPHROLOGIST" WHICH "NO ONE COULD DISAGREE WITH." [(Emphasis removed).]

B. THE COURT ERRONEOUSLY REQUIRED THAT DR. KAPLAN'S EXPERT TESTIMONY NOT ONLY BE SUPPORTED MEDICALLY AND STATISTICALLY BUT THAT IT NECESSARILY APPLY TO "EVERY PATIENT."

C. DR. SENSAKOVIC, THE ESTATE'S EXPERT, FAILED TO "REBUT" DR. KAPLAN'S OPINION. [(Emphasis removed).]

1. DR. SENSAKOVIC'S RESEARCH AGREED WITH DR. KAPLAN'S.

2. DR. SENSAKOVIC'S OPINION DEALT ONLY WITH COMPETENCY.

3. DR. SENSAKOVIC WAS UNQUALIFIED TO REFUTE DR. KAPLAN'S OPINIONS OR TO PROVIDE A "PERSONALITY ANALYSIS."

D. DR. DEMIDOWICH, THE DECEDENT'S CARDIOLOGIST WHO CONDUCTED ONLY "CARDIOLOGICAL FOLLOW-UP CONSULTATION" . . . WAS NOT OFFERED AS AN EXPERT, WAS NOT COMPETENT TO GIVE NOR DID HE GIVE EXPERT TESTIMONY TO REBUT DR. KAPLAN'S OPINION OR RENDER A MEDICAL OPINION. RATHER, HE OFFERED ONLY "IMPRESSIONS" WHICH WERE ERRONEOUSLY RELIED UPON BY THE COURT BELOW IN ITS EXPERT ANALYSIS. [(Emphasis removed).]

E. DR. NEIL LYMAN, THE DECEDENT'S TREATING NEPHROLOGIST, AGREED WITH PLAINTIFF'S EXPERT, DR. KAPLAN. [(Emphasis removed).]

F. JOANNE HALL WAS UNQUALIFIED TO GIVE EXPERT OPINION TESTIMONY. HER "MENTAL STATUS EVALUATION" IN HER "PSYCHOSOCIAL ASSESSMENT" AND A PSYCHOLOGICAL EVALUATION OF EDWARD CANTOR ON JANUARY 4, 2001 WERE TOTALLY WITHOUT FOUNDATION OR COMPETENCE. [(Emphasis removed).]

G. THE COURT'S ULTIMATE "MEDICAL" CONCLUSION AFTER MORE THAN SEVEN (7) DAYS OF MEDICAL TESTIMONY IS REMARKABLY SUPERFICIAL, SIMPLISTIC, AND LEGALLY ERRONEOUS.

POINT V

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING ATTORNEY FEES TO PLAINTIFF PURSUANT TO R[ULE] 4:42-9(a)(3). [(Emphasis removed).]

A. R[ULE] 4:42-9(a)(3) DOES ALLOW AN AWARD OF FEES IN A CONTINGENCY FEE CASE.

B. RULE 4:42-9(a)(3) IS DISPOSITIVE AND AUTHORIZES THE COURT'S AWARD OF ATTORNEYS FEES TO THE WILL CONTESTANT.

1. THE POLICY REASONS FOR R[ULE] 4:42-9(a)(3) SUPPORT THE TRIAL COURT'S AWARD.

2. STANDARD OF REASONABLE CAUSE IN RULE 4:42-99(a)(3) WAS MET.

POINT VI

THE COURT FAILED TO APPLY RULE 4:42-9(a)(3) OR RPC 1.5 AND ABUSED ITS DISCRETION IN REDUCING CONNELL FOLEY'S COUNSEL FEES FROM $1.3 [MILLION] TO $399,658[]. [(Emphasis removed).]

A. THE ALLEGATIONS BY THE ESTATE THAT CONNELL FOLEY'S BILLING RECORDS WERE "RE-MASTERED" IS IRRELEVANT TO THE ISSUE OF FEES.

B. THE CLAIM THAT THE BILLING RECORDS WERE AMBIGUOUS AND DUPLICATIVE WAS WITHOUT FOUNDATION AND RESULTED IN REDUCTION OF CONNELLY FOLEY'S BILLING BY [FIFTY PERCENT] OR APPROXIMATELY $600,000.

C. THE COURT IMPROPERLY APPLIED "THE LODESTAR METHOD" TO FURTHER CUT FEES BY AN ADDITIONAL 1/3 OR $218,764. AS THE LODESTAR METHOD IS INAPPLICABLE TO RULE 4:42-9(a)(3), THIS WAS A CLEAR ABUSE OF DISCRETION.

D. THE COURT'S CUTTING [OF] THE PLAINTIFF'S FEES BASED ON DUPLICATIVE OR CUMULATIVE EFFORTS WAS ARBITRARY, CAPRICIOUS AND UNJUSTIFIED. IT WAS UNWARRANTED BY THE RECORD AND INCONSISTENT WITH THE SPIRIT OF THE RULES.

E. THE TRIAL COURT PENALIZED THE PLAINTIFF FOR DELAYS AND REPETITIVENESS CAUSED BY THE COURT'S ACQUIESCENCE TO THE ESTATE'S TRIAL PROCEDURES.

F. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT CONNELL FOLEY SHOULD NOT HAVE BILLED OR BECOME INVOLVED WITH MOTIONS TO REMOVE MICHAEL CANTOR AS EXECUTOR OR THE APPEAL FROM HIS REMOVAL.

G. THE FEES INCURRED IN THE FLORIDA ACTION WERE ESSENTIAL IF THE CASE IN NEW JERSEY WAS TO CONTROL THE ISSUE OF UNDUE INFLUENCE.

H. THE TRIAL COURT ERRED IN DEDUCTING CHERYL'S $50,000[] RETAINER TO CONNELL FOLEY FROM THE FEE AWARD.

POINT VII

THE TRIAL COURT PROPERLY CONCLUDED THAT THE ESTATE WAS NOT ENTITLED TO FRIVOLOUS LITIGATION SANCTIONS. [(Emphasis removed).]

A. STANDARD OF REVIEW.

B. CROSS-RESPONDENT/APPELLANT PROVED HER

CASE.

1. CROSS-RESPONDENT / APPELLANT'S PROOFS DEMONSTRATED, AND THE COURT BELOW FOUND, CONFIDENTIAL RELATIONSHIPS AND SUSPICIOUS CIRCUMSTANCES.

2. THE ESTATE NEVER HAD A BASIS FOR ITS "NOT A SCINTILLA OF EVIDENCE" GROUNDS FOR THE IMPOSITION OF FRIVOLOUS LITIGATION SANCTIONS.

C. THE ESTATE'S FRIVOLOUS LITIGATION MOTION WAS UNTIMELY.

D. THE ESTATE'S APPEAL OF THE FAILURE TO AWARD FRIVOLOUS LITIGATION FEES IS FROM A MOTION FOR RECONSIDERATION.

I.

We first address Cheryl's cross-appeal and conclude, based upon our review of the record, the arguments of counsel, and consideration of the applicable legal principles, the court did not commit reversible error when it failed to "create and apply the presumption of undue influence" and failed "to shift the burden of proof." The court properly concluded that there was no basis to shift the burden of proof and, assuming the burden shifted, the proofs presented by the Estate overcame any presumption of undue influence in the execution of the April 6, 2001 will.

At the outset, there is a presumption that a will's "testator was of sound mind and competent when he executed the will." Gellert v. Livingston, 5 N.J. 65, 71 (1950). However, if the execution of the will was tainted by "undue influence," it may be overturned. Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 176 (1981); Gellert, supra, 5 N.J. at 76. "[U]ndue influence is a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets[.]" In re Estate of Stockdale, 196 N.J. 275, 302-03 (2008). However, "[n]ot all influence is 'undue' influence." Gellert, supra, 5 N.J. at 73. "It denotes conduct that causes the testator to accept the 'domination and influence of another' rather than follow his or her own wishes." In re Estate of Stockdale, supra, 196 N.J. at 303 (citing Haynes, supra, 87 N.J. at 176).

"Ordinarily, the burden of proving undue influence falls on the will contestant." Id. at 303. However, "if the will benefits one who stood in a confidential relationship to the testator" and that "confidential relationship" is "coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption." Ibid. A confidential relationship exists if the testator, "'by reason of . . . weakness or dependence,' reposes trust in the particular beneficiary, or if the parties occupied a 'relation[ship] in which reliance [was] naturally inspired or in fact exist[ed].'" Ibid. (quoting In re Hopper, 9 N.J. 280, 282 (1952)). "The factors to be considered in determining whether a confidential relationship is present . . . include whether trust and confidence between the parties actually exist[ed], whether they [were] dealing on terms of equality, . . . whether one side [has] exerted 'over-mastering influence' over the other or whether one side [was] weak and dependent." Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402 (App. Div. 2007). "Its essentials are both 'a reposed confidence and the dominant and controlling position of the beneficiary of the transaction.'" Ibid. (quoting Stroming v. Stroming, 12 N.J. Super. 217, 224 (App. Div.), certif. denied, 8 N.J. 319 (1951)).

Plaintiff has the burden of proving, by a preponderance of the evidence, that a confidential relationship exists. Ibid. The "preponderance of the evidence" standard requires a plaintiff to establish that the existence of a confidential relationship is "more probable than not." Id. at 403. However, existence of a confidential relationship between the testator and the beneficiary does not alone create a "presumption of undue influence." Gellert, supra, 5 N.J. at 71. There must also be "suspicious circumstances," which need only be "slight." Ibid.; Haynes, supra, 87 N.J. at 176; In re Will of Liebl, 260 N.J. Super. 519, 528 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993).

The trial court found that confidential relationships existed between 1) Michael and Edward; 2) Jane and Edward; 3) Charles and Edward, Michael and Jane; and 4) Adler and Edward, Charles and Michael. Therefore, Cheryl contends the court erred in requiring her to "to prove confidential relationships and suspicious circumstances by a preponderance of the evidence." We disagree.

It is evident from the court's findings that its use of the term "confidential relationship" to describe Edward's relationship with his wife Jane, son Michael, accountant Charles, and attorney Adler, was not intended as a legal characterization for purposes of determining that there was undue influence exerted over Edward at the time he executed his will.

For example, the court concluded that unquestionably there was a confidential relationship between Edward and Charles "based upon [their] long-term association[.]" Specifically, the court posed the following question, which it then proceeded to answer:

[I]s there any evidence to show, other than what I just referred to in terms of the inferences of being the family accountant . . . is there any evidence, certainly a preponderance of the evidence, to show that Charles Jacobs was the equal, and somehow had an influence, dominating influence, over Edward Cantor? There simply is none.

Charles Jacobs could not influence Edward Cantor. . . . Charles Jacobs to Edward Cantor was the functionary. He was his accountant and close friend, yes. But he was there to do Edward Cantor's bidding. There's no question about that. He paid him hundreds of thousands of dollars to do it. He told him, I'm taking money out of these accounts, of which Michael has a [seventy- six] percent interest. I want you to do these things, and Charles did them in that respect. There's no question about that.

Turning to Edward's relationship with Adler, the court found that the confidential relationship arose out of an attorney-client relationship. The court observed that the two men were not in "unequal relationships" as a result of Edward's then existing physical condition or any particular physical stressors.

Further, the court found that Michael had not been involved in the preparation of the 2000 codicil or the 2001 will, and never saw the 2001 will until after Edward's death. The court also noted the business disagreements between father and son and clearly found that there was a confidential relationship, but not in the legal sense:

So confidential relationship? Yes, indeed. Trust between the two of them?

Yes, indeed. A factor with respect to a presumption of undue influence. In a superior position to his father or dominating his father, because of his father's weakness or dependency, or being a dominant force in his father's life? No.

If anything, he was dealing on equal terms with his father. He could not influence Edward Cantor. No one could. Every witness said it. Every witness talked about his superiority in that regard.

The court did not point to specific facts that led it to conclude there no confidential relationship between Edward and Jane, in the legal sense. However, there was nothing in the record to suggest otherwise.

Addressing the "suspicious circumstances" component of an undue influence analysis, the court noted that there were slight "suspicious circumstances" in so far as the timing of the execution of the April 2001 will and the fact that Adler was communicating with Michael during this time period and also represented the Estate after Edward's death. The court nonetheless concluded that, in the absence of evidence of confidential relationships in the legal sense, its finding of slight suspicious circumstances was insufficient to shift the burden to defendants to overcome a presumption of undue influence. The court ruled that plaintiff failed to prove, by a preponderance of the evidence, that anyone exerted undue influence over Edward in the preparation and exertion of the April 2001 will.

In reviewing a trial court's determination on the existence of a confidential relationship, we may "'not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Pascale v. Pascale, 113 N.J. 20 (1988) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). There is substantial credible evidence in the record to support the trial court's findings and therefore no basis to disturb the trial court's conclusion that plaintiff failed to sustain her burden.

In addition, we observe the trial court additionally found, assuming the existence of a confidential relationship and suspicious circumstances, the Estate satisfied its burden of overcoming the presumption of undue influence and demonstrated that there was no such influence at the time the probated will was executed:

This was a fearless man. He wasn't going to answer to anyone in that regard. And the evidence . . . is overwhelming in that respect. His illness didn't do him in. His financial stresses clearly didn't do him in, because he never thought they were financial stresses. There was not one witness who comes forward to say, boy, Edward complained about the fact that he was under all of this financial stress and he was having a great deal of difficulty dealing with it. . . .

What we do have is Edward suing people, threatening suit against his own son. His own son threatening suit against him. Dealing in millions of dollars everyday. Taking millions of dollars. Spending millions of dollars on boats. Buying an ocean liner for a thousand feet [sic], and spending money on that. Buying shipyards. Working in millions of dollars everyday.

So when Michael writes him a letter and says, you owe me $40 million, that is not going to shake a man like Edward Cantor as it would other individuals. It's just another day at the office for this man.

Plaintiff argues that this finding was incorrect because the judge's "overarching personality analysis" and its "corollary" that Edward could not be influenced were "basic errors in the application of the controlling law" because "it is possible to influence [e]very human being." While this argument may have theoretical merit, the overwhelming testimony from numerous witnesses, including those who had worked for Edward for many years and those who interacted with him in business matters or in connection with his medical condition, was that despite his illnesses and connections with Michael, Jane, Charles and Adler, Edward was an extremely strong individual who spent his life dictating to others, not taking "no" for an answer, and doing things his way, despite opposition.

In addition to the many people who worked for or with Edward and testified to his dictatorial and unyielding personality, the record discloses specific examples of his formidable character, even while battling his medical condition. First, despite Edward telling Jane that Michael was "badgering" him about executing estate tax planning devices, and despite Adler's and Charles's strong recommendation that he finalize the tax planning to avoid subjecting his estate to a substantial taX obligation, Edward refused to finalize the recommended tax planning because it would have meant giving up control of his assets during his lifetime. Second, despite his doctor's disapproval, Edward continued his plans to outfit his yacht with dialysis equipment.

In short, the undisputed evidence showed that Edward was a formidable person who remained that way until his death, notwithstanding his health problems. The judge appropriately found that Edward was not a man who was easily influenced, nor was he in fact influenced by Michael, Jane, Charles, or Adler in the execution of the April 6, 2001 will. Moreover, assuming the Estate had the burden to prove there was no undue influence, we are in complete agreement with the trial court's conclusion that the Estate overwhelmingly sustained that burden.

The remaining points raised by Cheryl are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

II.

We next address the Estate's claim in its appeal that Cheryl was not entitled to an award of counsel fees.

Rule 4:42-9 states:

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except

(3) In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent.

If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate. . . .

In a will contest, the allowance of counsel fees under Rule 4:42-9(a)(3) is discretionary. In re Reisdorf, 80 N.J. 319, 327 (1979). "While deference will ordinarily be given to discretionary decisions, such decisions will be overturned if they were made under a misconception of the applicable law." O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997). Where the decision turns on a question of law that flows from established facts, the trial court decision is not entitled to any deference, and appellate review is de novo. Dempsey v. Alston, 405 N.J. Super. 499, 509 (App. Div.), certif. denied, 199 N.J. 518 (2009).

"Except in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a will dispute." In re Reisdorf, supra, 80 N.J. at 326. An unsuccessful contestant is entitled to costs when he or she shows "reasonable cause" for bringing a probate challenge, defined as a belief that "rested upon facts or circumstances sufficient to excite in the probate court an apprehension that the testator lacked mental capacity or was unduly influenced[.]" In re Will of Caruso, 18 N.J. 26, 35 (1955); accord In re Will of Eddy, 33 N.J. Eq. 574, 578 (E. & A. 1881). This requirement "'works no hardship upon the contestant and affords some protection to the estate from speculative and vexatious litigation.'" In re Caruso, supra, 18 N.J. at 35 (quoting In re Sebring's Will, 84 N.J. Eq. 453, 455 (Prerog. Ct. 1915)).

In ruling on plaintiff's motion for counsel fees, the trial court summarized plaintiff's theory of the case as, "there was a reconciliation, that Mr. Cantor[,] the decedent[,] was very ill, was subject to undue influence because of his illness, . . . that his son Michael was claiming some $40 million[, and] that his father was putting financial pressure on him." The court then reiterated its earlier findings in dismissing Cheryl's complaint in which it noted that Michael's claim to millions had no effect on Edward, that even though he was ill, "he was one of the exceptions that the expert talked about[,] that his illness wouldn't have affected him. He was in business every day right up until the very end." The court also found that although there was a reconciliation between plaintiff and Edward, "it was tenuous at best in terms of the time lines as to the effect on Edward in that regard." The court then stated, "[s]o there's proofs here[,]" and then proceeded to address the reasonableness of the fees being sought.

After rendering these findings, however, the court did not analyze the reasonableness of plaintiff's will contest in light of those findings. Rather, it appears the court was implicitly influenced by the fact that Cheryl's contest survived three earlier summary judgment motions:

But we had [thirty-five] days of trial here in which the [c]court was looking at all of the facts and circumstances as to really what the plaintiff was claiming in that regard and the rebuttal to all of those claims, the rebuttal to was there a reconciliation[,] and even if there was, what was the true nature of that reconciliation. That's what I had to deal with, and that's what was presented to me.

We know that the decedent was ill. We know he was extremely ill. We know he had suffered other problems besides his renal failure. And the rebuttal to that is what was the effect of that in the day-to-day functioning - - mental functioning and physical functioning of Edward Cantor, and the [c]court made all its findings in that regard.

And now we heard about all of his financial empire and how [as] he got older[,] he sold off a lot of these buildings, how there were partnerships with Michael and that even though he only had [one] percent, he was taking the monies from Michael and his - - Michael's majority interest in that. I heard all of that testimony and determined[,] as I concluded[,] just another day at the office for Edward Cantor.

So I had to deal with all of those issues in trial, and that's really what I was saying before. Even though it was quote "unspoken" end quote before Judge Stanton, Judge Cramp, Judge MacKenzie, and Judge Langlois, they understood . . . what would be required in that regard and why summary judgment could not have been granted in that respect.

At the summary judgment stage of litigation, a court is viewing all of the evidence in the light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Thus, the fact that three judges denied the Estate's prior summary judgment motions is, we believe, dispositive of the absence of merit to the Estate's claim for frivolous litigation sanctions. It is not, however, dispositive of the ultimate determination of the reasonableness of Cheryl's claim. By the conclusion of the trial, however, the court, as the trier of fact, had the opportunity to consider and weigh all of the evidence and to make credibility determinations after observing witnesses under direct or cross-examination. As such, the posture of the case was different and the court was in a better position at the conclusion of the trial to then assess the reasonableness of the will contest. The court's factual findings, when considered against the legal standard that counsel fees in probate actions should not be awarded in meretricious cases, persuades us the court erred, as a matter of law, in awarding counsel fees to Cheryl. In re Reisdorf, supra, 80 N.J. at 326. The court's findings do not support any conclusion other than that Cheryl's will contest was meretricious. Ibid.

The statements made during Cheryl's divorce, after Edward's death, were convincing evidence of plaintiff's lack of reasonable cause to contest the will. In the divorce trial, plaintiff urged the court to find that she was disinherited because of her husband's bad acts against her father. She made no mention of Michael's or anyone else's undue influence. She admitted that she never told the divorce judge that she and her father had reconciled, or that he had promised to take care of her in his will. Notably, her contentions in the divorce case were made after she filed the complaint in the this matter. In an effort to explain the inconsistency between what was said during her divorce trial and the will contest, Cheryl testified that at the time of her divorce testimony, she "didn't know everything regarding what Michael and Jane had been doing[.]" Accepting the truth of that testimony, Cheryl could not, at the time she filed her complaint, have had reasonable cause to believe that undue influence had been exercised over her father in the execution of his April 6, 2001 will. Thus, in filing the complaint, not knowing what "they had been doing," plaintiff had no more than "hope" that the examination of witnesses would uncover wrongdoing, and that is not enough to satisfy the standard. In re Estate of Tenenbaum, 118 N.J. Eq. 405, 407-08 (Prerog. Ct. 1935), aff'd, 119 N.J. Eq. 488 (E. & A. 1936) (holding no reasonable cause existed where contestant had only "doubt and suspicion as to the validity of the will" and prolonged "his contest when he had no affirmative proof of undue influence.")

Other circumstances point to plaintiff's lack of reasonable cause that her ill father had been subjected to undue influence. Plaintiff maintained the she spoke to her father regularly from early 2000 until his death and was aware of his illnesses. Despite that knowledge, in December 2001, eight months after the execution of the April 6, 2001 will, she asked her father to serve as an expert witness in the areas of real estate and commercial building construction in her divorce case. This indicates a lack of reasonableness in her belief that Edward was so weak and ill that his mind had deteriorated to the point that other people were directing his decisions.

Further, plaintiff claimed that she spoke to Edward's office staff regularly and was friendly with some of them. Yet, there was no indication in the record that prior to filing her complaint, she made any attempt to talk to the staff about her father's condition, which would not have been an onerous task. Had she done so, she would have learned that all were in accord that Edward, although tired after dialysis, remained in firm command of his own life and was not subject to anyone's undue influence.

The record reveals further that prior to filing her complaint, plaintiff had no evidence whatsoever that her father was subject to undue influence. The only thing she knew was that he had renal disease. As the case progressed, depositions were obtained, and the evidence mounted against her position. Numerous people who were very close to Edward consistently testified that Edward was in command of his decisions and that no one influenced him. Yet, Cheryl pursued her claims through a lengthy trial that, as the trial court found, was, in large part, repetitious and irrelevant. Much of the testimony focused on events that happened after Edward executed the April 6, 2001 will, such as Michael's increasing demands for payment of his debt and requests for estate planning devices. Not even Jane, who was engaged in litigation with Michael, or Charles, who had also engaged in hostilities and litigation with Michael, testified that Michael exerted any undue influence over his father. In the end, plaintiff's claim was as hollow as it had been at the beginning.

In short, at the outset of the case, plaintiff knew only that she had been disinherited and that her father had been ill. Although the bare circumstances of being disinherited by her ill father and the bulk of the estate going to Michael may have been sufficient to excite an apprehension in the court that undue influence was at work, plaintiff had knowledge beyond what she advised the court. Based solely upon her own testimony, Cheryl was in contact with her father, whether in person, telephonically or through her divorce attorney, before, during and after the time he executed the April 2001 will, and she offered no evidence of her first-hand recognition that his health had changed him from a formidable person to a weak individual controlled by others. Had she believed that to be the case, she would not have asked him to be an expert witness in her divorce trial and she would not have blamed her ex-husband for her disinheritance, but, instead, those who she now alleges exerted undue influence over Edward.

In re Sebring's Will cautions against awarding counsel fees where reasonable cause to contest the will has not been established because the failure to do so "affords an easy mode for a disappointed heir to thwart the intentions of the testator by squandering the estate in litigation, or compelling the legatees to accede to unreasonable terms of settlement." 84 N.J. Eq. at 455. The factual findings of the trial court here do not support any conclusion other than the absence of reasonable cause to contest the will. Therefore, the court erred, as a matter of law, when it found that Cheryl was entitled to an award of counsel fees. In view of this determination, we need not address whether the fees awarded were excessive or, alternatively, should have been limited to the $50,000 as set forth in Cheryl's retainer agreement with her attorney.

The Estate's arguments in support of its contention that the trial court erred in denying its motion to reconsider the denial of its application for the imposition of frivolous litigation sanctions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e).

Affirmed in part, reversed in part, and remanded for the entry of an order vacating the counsel fee award.


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