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In the Matter of the Estate of Betsy A. Schnitzer

May 9, 2012

IN THE MATTER OF THE ESTATE OF BETSY A. SCHNITZER, DECEASED.


On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. CP-0046-2008.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 20, 2012

Before Judges Yannotti, Espinosa and Guadagno.

Stephen Schnitzer appeals from a judgment entered by the Chancery Division on June 21, 2010, upholding the 1998 will of Stephen's mother, Betsy A. Schnitzer (Betsy), the 2004 codicil to that will, and related trust instruments. For the reasons that follow, we affirm.

I.

We briefly summarize the relevant facts, which are drawn from the trial record. Betsy was married to Morris Schnitzer (Morris), a prominent New Jersey attorney and former counsel to the Connell, Foley & Geiser law firm (CFG). Betsy and Morris had two children, Sandra and Stephen, who are both attorneys. Sandra has two children and six grandchildren. Stephen has one child.

On April 19, 1995, Betsy executed a will in which she bequeathed her personal property to Morris and Sandra. She placed the residuary estate in two trusts, with income to be paid to Morris. Upon Morris's death or remarriage, income from the trust would be paid to Sandra and Stephen, with distributions from principal as necessary for their health or maintenance. If either Sandra or Stephen died before Morris, such income and distributions would be paid to their children. Betsy named Morris as the executor and trustee.

On February 19, 1997, Morris executed a will in which he bequeathed all of his personal possessions to Betsy and placed the residuary estate into two trusts, with income from the trusts to be paid to Betsy, along with distributions of principal, as necessary for her health and maintenance. Upon Betsy's death, income from the trusts would be paid to Sandra and Stephen or to their children, should either Sandra or Stephen die before Betsy. Morris named Betsy as executrix and Chase Manhattan Bank, which was later known as JP Morgan Chase (Chase), as trustee.

Morris died on March 8, 1997. Betsy retained Thomas Cosma (Cosma) of CFG to assist her in having Morris's will admitted to probate. Betsy also asked Cosma to prepare a new will, but after he did so, she refused to sign it. Betsy then retained Dewey Ballantine, L.L.P. (DB), a New York law firm, and New Jersey counsel as her attorneys. Sandra recommended DB because she had known William Warren, a partner at the firm, since the mid-1980s, and her then-law partner and husband, Stephen Nordquist, had been a partner at the firm.

Initially, Betsy asked John Olivieri (Olivieri), who was then an associate at DB, to draft a new will that would completely disinherit Stephen. She was angry with Stephen's behavior during the administration of Morris's estate. She said that Stephen did not need her money or deserve it. Betsy also was aware that Stephen was likely to contest the will, and she wanted to make it as difficult as possible for him to do so. Olivieri advised Betsy against disinheriting Stephen. Betsy chose not to disinherit Stephen at that time.

On August 18, 1998, Betsy executed the will and the related trust documents. Olivieri reviewed the documents and explained their contents to Betsy before she signed them. Olivieri testified that, based on his experience dealing with Betsy over the previous months, he had no doubt that she was mentally competent and capable of executing the documents. Olivieri also said that he had no reason to believe that Betsy was being unduly influenced to execute the documents, which had been prepared at Betsy's request and according to her instructions.

In the will, Betsy named Chase as executor of the estate. Betsy made several specific bequests of personal property to Stephen and her granddaughter Laura, and left the rest of her personal property to Sandra. Betsy placed the remainder of her estate in trust, and granted Sandra seventy-five percent and Stephen twenty-five percent of the residuary estate. The terms of the trust made it relatively easy for Stephen to invade the principal, and somewhat more difficult for Sandra to do so. According to Olivieri, this was because at the time, Betsy was concerned about Sandra's finances.

In September 1999, Chase filed suit to compel an accounting of Morris's estate. The lawsuit apparently was prompted by Stephen's complaints about the manner in which Betsy was handling the estate. Among other things, Chase sought an order compelling Betsy to turn over to Chase the remaining assets of the estate. Stephen was actively involved in the litigation. Among other things, he objected to the amount of DB's fees, Betsy's commission, and Betsy's failure to assert a medical malpractice claim against Morris's doctors.

Betsy was furious that her decisions were being questioned in the litigation. She perceived that Stephen was suing her personally. She was particularly incensed by Stephen's objection to her commission, and his claim that she wrongfully failed to assert a medical malpractice claim against Morris's doctors, which she viewed as questioning the care she provided for Morris during his final illness. The litigation was settled in 2002.

In June 2003, Betsy retained DB to perform additional work on her estate plan. Olivieri said that at that time, Betsy required assistance with her finances. He recommended that Betsy fund the revocable trust and allow Chase, as trustee, to handle her bills. Betsy agreed with the recommendation, but wanted to name Sandra as co-trustee. Olivier drafted the necessary paperwork.

In February 2004, Sandra called Olivieri and told him Betsy wanted to change her estate plan and grant her three-quarters of the residuary estate, with the remainder going to her children, David and Laura. When Olivieri spoke to Betsy, she confirmed that she wanted to change her will, but said that she wanted Sandra to inherit the entire residue of the estate. Betsy told Olivieri she was concerned about Sandra's finances and she wanted to disinherit Stephen. Olivieri advised Betsy against disinheriting Stephen, as he had in the past; however, Betsy rejected his advice.

On April 14, 2004, a meeting was held at Betsy's home. The meeting lasted about half an hour. Olivieri was present with his associate William Brick (Brick) and Gregory V. Kirk (Kirk), a trust officer from Chase. Sandra had arrived earlier that day to have breakfast with Betsy and help her get dressed. Sandra said she and Betsy did not discuss Betsy's estate plan while they were alone together.

Sandra was present for the first part of the meeting when Betsy executed documents naming Chase and Sandra as co-trustees of the trust. Olivieri explained those documents. After Betsy signed these documents, Sandra left the house.

Olivieri then discussed the estate plan with Betsy. He explained that he brought two sets of documents with him. One set would keep the division of Betsy's residuary estate as seventy-five percent for Sandra and twenty-five percent for Stephen. The other would disinherit Stephen. Olivieri told Betsy to think carefully about disinheriting Stephen. He also told her she did not have to sign either set of the documents.

Betsy laughed and said no one could get her to do something she did not want to do. Betsy stated that she wanted to disinherit Stephen. She said this was something she had been thinking about for a long time. She was angry with Stephen about the litigation over Morris's estate. She also had not heard from him in a long time. Betsy executed the documents that disinherited Stephen. She also executed ...


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