On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. 09-00532.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Grall.
These three appeals, which have been calendared back-to-back, have been consolidated for purposes of this opinion. Appellants are Robert and Ronald Hoch, brothers of the decedent Catherine Hoch, and Robert's two children, Robert Hoch, Jr. and Leslie Cybulski. They appeal the August 31, 2010 judgment of the General Equity Part admitting decedent's April 1, 1999 Will, as altered with cross-outs and additions, into probate, and its May 6, 2011 order awarding them only partial counsel fees. For reasons that follow, we affirm.
In January 2008, decedent entered a nursing home where she resided until her death on October 15, 2008. Decedent had a Will dated April 1, 1999, in which she appointed her childhood friend, plaintiff Elizabeth Davis executrix. No one disputes that the Will was valid when executed.
In its original form, the Will included bequests to charity and named as its principal beneficiaries decedent's nephew and niece, who were not intestate heirs, her surviving brothers being her only heirs at law. Specifically, Article Fifth gave Robert Jr. a right of first refusal to purchase her home for $50,000.00, with the proceeds of the sale going into decedent's estate, and if Robert declined that opportunity, the same offer was to be extended to his sister, Leslie. The Will addressed decedent's car in the same manner. Article Sixth directed that all stocks, bonds, and other securities be sold and the proceeds divided equally between her nephew and niece. Article Seventh made specific devises of $5,000.00 each to her nephew, niece and longtime friend, Elizabeth Davis. The residuary estate in Article Eighth was devised equally to Robert, Jr. and Leslie. Finally, in Article Seventh, $10,000.00 was devised to the Hopewell Valley School District, with interest from the bequest to be used for annual student awards. In the same Article, decedent made devises of $5,000.00 each to some thirty-six named entities, all of which appear to be civic, social and/or charitable organizations.
Subsequent to the execution of the Will, although the exact timing has not been established, decedent made significant interlineations (cross-outs) and alterations in handwriting to the Will. These handwritten revisions are extensive. In part, they void the specific and residuary bequests to her nephew and niece, and add to the end of Article Twelfth:
"Robert [Jr.] and Leslie have already received millions from Herbert and the House [t]hat was [su]pposed to be mine."
In Article Seventh, twelve of the original charitable institutions are crossed out and "Howell Farm [$]10,000" is added. In Article Eighth, "Hopewell Museum" is substituted for the nephew and niece as devisee of decedent's residuary estate.
In the document's title, the words "Last Will" are crossed out and the words "Living Trust[,]" "Corrected" and "Reviewed 9/23/07" have been added, along with a signature purporting to be that of the decedent. Similarly, in the introductory paragraph, the words "Last Will and Testament" are crossed out and the words "Living Trust" are substituted in handwriting, as they are throughout the document. On the Will backer, there are the handwritten words "Void" and "Final Living Trust 4/20/2002[,]" which appear to be in the decedent's handwriting.
Davis filed a verified complaint seeking judgment admitting decedent's Will to probate and granting Letters Testamentary to her. Shortly thereafter, the court entered an order appointing Davis temporary administratrix of decedent's estate. Separate answers were filed by Robert and Ronald Hoch and a third answer was filed by the nephew and niece. The Attorney General was served with pleadings in her capacity as protector of the public's interest in estates with charitable gifts. The parties were referred to mediation, which proved unsuccessful.
A trial ensued in which Davis was the lone witness. According to Davis, in late January or February 2008, while at Care One, decedent told her that she had a Will at home, advised her where it was located, and asked her to retrieve the document and bring it to the nursing home. Davis complied within a few days of the request and when she delivered the April 1, 1999 Will, decedent identified the document as her Will. When Davis expressed concern over the handwritten cross-outs and alterations, decedent remarked that she wanted to make these changes and, in fact, intended the handwritten notations to act as revisions to her Will. She did not share Davis' concern over the effectiveness of the altered Will because she had initialed the changes.
Nevertheless, Davis suggested that it would be better if a new Will were drafted and despite decedent's belief that the altered Will remained valid, she agreed to have a new Will prepared. Davis then typed a new version of the April 1, 1999 document that incorporated all of the handwritten changes decedent had made to her Will and gave it to decedent in April 2008.*fn1 Sometime in late September or early October 2008, decedent reviewed the new draft side-by-side with the original document and was satisfied with the draft prepared by Davis, who then arranged to have a notary available for the Will's execution on October 7, 2008. That date was rescheduled for a week later, however, decedent suffered cardiac distress on October 14, 2008 and passed away the next day.
At the close of evidence, the General Equity judge found Davis' unrefuted testimony to be "credible, clear and convincing[,]" noting:
[plaintiff] will reap no personal gain if the relief she seeks is granted. Plaintiff will not be a beneficiary under the [W]ill in the form in which it is sought to be probated because a $5,000.00 bequest to her contained in the original version is crossed out and is one of the revisions that Plaintiff seeks to have approved as valid . . . [Further], ...