On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. CP-0304-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Yannotti.
In A-3162-10, plaintiff Maria Barchat (Barchat), appeals from an order entered by the Chancery Division on January 20, 2011, denying her motion for summary judgment and granting summary judgment in favor of defendants, Judith and Rubin Pizem (the Pizems). In A-4615-10, the Pizems appeal from the denial of their motion for attorneys' fees and costs pursuant to Rule 1:4-8. We consolidate the appeals for purposes of decision and affirm the orders from which these appeals were taken.
On December 11, 1996, Chaim Lichtsztral (Lichtsztral), a resident of the State of New York, executed a last will and testament, which directed that his debts, funeral and administrative expenses be paid. The will further provided that, if his wife, Nadia Lichtsztral (Nadia), survives him, the remainder of the estate would be held in trust for her benefit.
According to the will, the trustees would have the discretion to pay Nadia all or part of the principal of the trust as they deem necessary or desirable for her support, maintenance, health, comfort or general welfare. The will additionally provided that, upon Nadia's death, the trustees shall pay over the remaining principal of the trust and any accumulated income to Barchat, who is Chaim Lichtsztral's daughter.
In January 2003, Lichtsztral was arrested after Nadia called the police and alleged that he had engaged in an act of domestic violence. It appears that Lichtsztral spent the night in jail. He later said that, after his release from jail, he stayed several days in a local hotel. Lichtsztral claimed that his granddaughter had attempted to have him admitted to a psychiatric hospital but the physicians there had refused to admit him.
Lichtsztral additionally claimed that his granddaughter took him back to the hotel and, several days later, Barchat picked him up and brought him to her home in North Babylon, New York. Lichtsztral said that, while he was staying there, Barchat and her husband demanded that he change his will, disinherit Nadia and leave all of his assets to Barchat. Lichtsztral refused and he claimed that Barchat and her husband thereafter began to threaten him physically.
Lichtsztral allegedly called the Pizems, who were his friends, and asked if he could come to live with them because he believed that the situation at Barchat's home was intolerable. Lichtsztral apparently has known Rubin Pizem for about fifty years. One of the Pizems's friends drove to Long Island, picked up Lichtsztral at Barchat's home, and drove him to the Pizems' home in New Jersey.
Robin Karpel (Karpel) lived across the street from the Pizems. She was the office manager of the Wiley, Malehorn & Sirota law firm (the Wiley firm). Karpel stated that Lichtsztral told her he wanted to change his will, and she introduced him to Sheila Mints (Mints), a partner in the Wiley firm. Lichtsztral later met with Mintz. According to Mintz, Lichtsztral stated that his wife and daughter had been heartless and treated him shamefully. Lichtsztral allegedly told Mints that he wanted to leave all of his money to the Pizems and directed her to draft his will accordingly. Mints said that he described his assets in detail and told her to designate Judith Pizem as the executrix.
According to Mints, Lichtsztral "indicated that he was currently residing with the Pizems but planned to return to Brooklyn at least temporarily because, sadly, he hoped against hope that he somehow would be able to get back together with his wife." Mints said that Lichtsztral told her "that if that did not work out, he would probably look for some place to live in New Jersey as Ruben Pizem was his oldest friend."
Mints stated that she had no doubt at the time as to Lichtsztral's testamentary capacity. It appears, however, that Dr. Alan D. Fetterman (Dr. Fetterman) examined Lichtsztral on February 13, 2003. Dr. Fetterman is board certified in internal medicine and mainly practices in the field of geriatric medicine. Dr. Fetterman concluded that Lichtsztral was suffering from dementia due "most probably" from Alzheimer's Disease. Dr. Fetterman stated that Lichtsztral "lacks capacity to handle his own financial affairs." Dr. Fetterman later testified that he never found that Lichtsztral lacked testamentary capacity.
On March 10, 2003, Mints met again with Lichtsztral to review and execute the will. Mints said that Lichtsztral confirmed his wish to leave all of his assets to the Pizems. She stated that Lichtsztral was "completely lucid and able to discuss his assets and his wishes for their disposition."
During that meeting, Lichtsztral also told Mints he found an assisted living facility called the Savoy Assisted Living Center (the Savoy) in Brooklyn, New York, and he would see if things worked out with his wife before he decided whether to stay in Brooklyn. That same day, Mints was told that the Savoy had advised Lichtsztral that it would not accept him.
Mints contacted the Savoy. She was told that Barchat had called and advised against accepting her father as a resident because he was violent. Mints located a geriatric psychiatrist, Dr. Lee Hindin, (Dr. Hindin), who evaluated Lichtsztral and found that he had "mild cognitive slowing appropriate to age." Dr. Hardin stated that Lichtsztral was capable of participating in a shared living environment. Mints forwarded the doctor's evaluation to the Savoy, which then accepted Lichtsztral.
Shortly thereafter, Nadia instituted divorce proceedings. Mints says that Lichtsztral contacted her. He allegedly told her there was no hope of reconciliation with his wife "and that his only home was with" the Pizems. Mints claims that Lichtsztral told her the only time any family member visited him at the Savoy was when his granddaughter served him with the divorce papers. Mints stated that Lichtsztral said "he intended to take up permanent residence near the Pizems as soon as he was able to wind up his affairs."
Mints met with Lichtsztral several months later to discuss the progress of the divorce proceedings. She stated that Lichtsztral told her that he had changed the address on his financial documents to the Pizems's address "in preparation for his return to New Jersey." Mints also said that Lichtsztral was "emotionally distraught" over the divorce but he "was able to discuss the divorce proceedings and proposed property settlement clearly." She stated that Lichtsztral did not at any time "appear confused or unable to understand what was happening."
Several months later, Judith Pizem informed Mints that Lichtsztral was in the hospital. He had a "deep vein thrombosis" and because he was sedated, the hospital was seeking permission from the family to treat him. A social worker at the hospital purportedly said that Nadia and Barchat had refused permission for ...