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In the Matter of the Estate of Vivian Fassett.

March 2, 2012


On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Ocean County, Docket No. 188933 (consolidated with L-126-11 and C-2-11).

Per curiam.


Argued: February 16, 2012 -

Before Judges Cuff and Waugh.

On December 6, 2010, the Surrogate of Ocean County admitted to probate the last will and testament of Vivian Fassett and issued letters testamentary to Cheryl Capers and Marie Hardy as co-executrixes of the Fassett estate. Thomas Bolling, a brother of Fassett, filed a complaint seeking several forms of relief, including an order setting aside the will, an order barring disposition of Fassett's remains as directed in her will, an accounting, and money damages. Bolling appeals from the March 1, 2011 order dismissing the complaint, directing Capers and Hardy to proceed with their duties as executrixes, authorizing Capers and Hardy to proceed with the disposition of decedent's remains in accordance with her instructions, and ordering Capers and Hardy to provide an accounting.*fn1

On appeal, Bolling argues that the trial court erred in upholding the will and authorizing the executrixes to proceed with the funeral arrangements because the will was fraudulent and decedent was under undue influence when she signed the will. Due to our denial of Bolling's application to stay disposition of decedent's remains, this appeal is limited to his contentions that the October 30, 2010 will executed by Fassett is the product of undue influence and she was not competent to execute the will at that time. Capacity to make a will and undue influence are separate concepts governed by different legal principles and will be discussed in turn.

After a will has "been admitted to probate, it may be challenged by the timely filing of a complaint in the Probate Part." In re Estate of Stockdale, 196 N.J. 275, 302 (2008) (citing R. 4:85-1). In an attack against the validity of a will, "[t]he legal presumption is that the testator was of sound mind and competent when he executed the will." In re Will of Livingston, 5 N.J. 65, 71 (1950). Generally, "'the law requires only a very low degree of mental capacity for one executing a will.'" In re Will of Liebl, 260 N.J. Super. 519, 524 (App. Div. 1992), (quoting In re Will of Rasnick, 77 N.J. Super. 380, 394 (Cty. Ct. 1962)), certif. denied, 133 N.J. 432 (1993). The trial court must determine whether the testator comprehended the property of which she would dispose, the recipients of her property, the act of executing the will, and the relation among these factors. Will of Livingston, supra, 5 N.J. at 73.

A will may be contrary to the principles of justice and humanity; its provisions may be shockingly unnatural and extremely unfair, nevertheless if it appears to have been made by a person of sufficient age to be competent to make a will and also to be the free and unconstrained product of a sound mind, the courts are bound to uphold it. [In re Estate of Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952), certif. denied, 11 N.J. 211 (1953).]

Bolling, as the party who challenges the capacity of his sister to make a will, has the burden of proof to overcome the presumption that his sister had the capacity to execute the October 30, 2010 will. That she died within thirty days of executing the will is not dispositive of her capacity on October

30. Bolling had the obligation to adduce competent evidence that his sister did not comprehend the nature and scope of her assets, the identity of the persons to receive these assets, the fact that she was executing a will, and that the document would distribute those assets to the persons she had identified. Competent evidence is evidence that is trustworthy, reliable, and probative of the fact or facts at issue and admissible in court in accordance with the Rules of Evidence. See Calabro v. Campbell Soup Co., 244 N.J. Super. 149, 169 (App. Div. 1990) (Competent evidence is evidence that is "'[l]egally qualified or adequate.'" (quoting Webster's Ninth New Collegiate Dictionary at 268 (1983))), aff'd, 126 N.J. 278 (1991).

Measured by this standard, Bolling did not carry his burden. He submitted to the Probate Judge various documents that provided information about his sister's condition at various points in time. For example, a document dated August 26, 2010, reported that his sister "has lung ca[ncer] on heavy meds & confused." The document, however, was not authenticated and also recited her condition two months before she executed the October 30, 2010 will. Significantly, the record before the Probate Judge contained no properly authenticated documentation or other admissible evidence of her testamentary capacity on October 30, 2010.

A will may be overturned, however, if tainted by "undue influence." Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (1981). Not all influence, however, amounts to undue influence. Will of Livingston, supra, 5 N.J. at 73. "Persuasion or suggestions or the possession of influence and the opportunity to exert it, will not suffice." Ibid. Rather, the influence must amount to a "mental, moral or physical exertion which has destroyed the free agency of a testator by preventing the testator from following the dictates of [her] own mind and will and accepting instead the domination and influence of another." Ibid. Generally, "[t]he burden of proving undue influence is upon the person asserting it and it must be clearly established." Id. at 71; see also Estate of Hoover, supra, 21 N.J. Super. at 325 (undue influence "must be sustained by clear and convincing evidence.").

"[O]nce a presumption of undue influence has been established[,] the burden of proof shifts to the proponent of the will, who must, under normal circumstances, overcome that presumption by a preponderance of the evidence." Haynes, supra, 87 N.J. at 177-78. Hence, "if the will benefits one who stood in a confidential relationship to the testator and if there are additional 'suspicious' circumstances, the burden shifts to the party who stood in that relationship to the testator." Estate of Stockdale, supra, 196 N.J. at 303. The suspicious circumstances may be slight. Ibid.

Here, too, the information submitted by Bolling failed to carry the requisite burden to establish undue influence by anyone, let alone require a shift of the burden of proof to ...

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