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In the Matter of the Estate of Jason Marles.

October 24, 2011

IN THE MATTER OF THE ESTATE OF JASON MARLES.


On appeal from the Superior Court of New Jersey, Ocean County, Chancery Division, Probate Part, Docket No. 188999.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2011

Before Judges Messano and Yannotti.

Virginia Marles (Virginia) appeals from an order entered on March 14, 2011 by the Probate Part of the Chancery Division, which denied her motion to remove Patricia Engrassia (Patricia) as administratrix ad prosequendum for the Estate of Jason Marles (Jason). We affirm.

This appeal arises from the following facts. Virginia and Jason Marles were married on July 1, 2008. They had two children. One child was born in 2005, and the other was born in 2006. Virginia filed a complaint for divorce on June 22, 2009. Virginia and Jason were represented by counsel in the divorce proceedings.

On December 15, 2009, the Family Part entered a dual judgment of divorce which dissolved Virginia's and Jason's marriage. The judgment incorporated a marital settlement agreement, which provided among other things, that each party waives and relinquishes any and all rights they may have now or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other party as a result of the marital relationship, including, without limitation, dower, courtesy, statutory allowance, widow's allowance, homestead rights, rights to intestacy, right to take against the will of the other, and the right to act as administratrix or executor of the other's estate; and each party will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect the mutual waiver and relinquishment of all interest, rights and claims.

On November 25, 2010, Jason was involved in an automobile accident which resulted in his death. At the time, Jason was living with Virginia and their two children at the former marital home in Point Pleasant. According to Virginia, she and Jason had reconciled and were planning to get remarried.

Jason died without a will. After his death, his mother Patricia, stepfather Joseph Engrassia (Joseph), and Virginia met with attorney Bradley D. Billhimer (Billhimer). They asked Billhimer to handle a civil lawsuit on behalf of Jason's estate against the driver allegedly responsible for his death. Billhimer enlisted William V. Kelly (Kelly), a certified civil trial attorney, to assist in the handling of the case.

Billhimer and Kelly met with Virginia on December 7, 2010. According to Billhimer, Virginia agreed that he and Kelly would handle the wrongful death action. Billhimer and Kelly informed Virginia that Patricia wanted to be appointed as administratrix ad prosequendum for the estate. Virginia agreed and executed a document addressed to the surrogate in which she stated that she renounced "all right and claim" to the appointment and requested that Patricia be designated administratrix of the estate and administratrix ad prosequendum.

On December 9, 2010, the Ocean County surrogate issued letters appointing Patricia as administratrix of the estate and its administratrix ad prosequendum. It appears that shortly thereafter, Virginia had an argument with Patricia and Joseph, after which Virginia retained her own attorney. According to Billhimer, Virginia stated that she intended to fight Patricia on "everything."

On January 3, 2011, Virginia filed an order to show cause and a verified complaint in the trial court seeking, among other things, her appointment as administratrix ad prosequendum. The court entered an order on January 14, 2011, requiring Patricia to show cause why the relief sought in Virginia's verified complaint should not be granted.

On February 7, 2011, at Virginia's request, the Ocean County surrogate issued letters designating Virginia as administratrix and administratrix ad prosequendum of Jason's estate. The surrogate also designated Virginia as guardian of the property of her two minor children. On February 21, 2011, Patricia filed a motion in the trial court seeking an order permitting her to continue as administratrix of the estate and administratrix ad prosequendum, and dismissing Virginia's complaint.

The trial court considered the matter on February 28, 2011. Before the court, Virginia disclaimed any further interest in serving as administratrix of the estate, but argued that she should be permitted to serve as administratrix ad prosequendum for the wrongful death action because Virginia's and Jason's two children were the sole heirs of the estate ...


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