July 24, 2012
IN THE MATTER OF THE ESTATE OF ALBERTHA BLACKWELL.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County, Docket No. CP-0057-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2012
Before Judges Lihotz and Waugh.
Appellant Virginia Jeffries appeals from a Chancery Division order rejecting her authenticity challenge and allowing the probate of an instrument purported to be the Last Will and Testament (the Will) of her mother, Albertha Blackwell (the decedent). The sole beneficiary named in the Will is A.Q., the decedent's minor granddaughter. On appeal, Jeffries maintains the probate judge erred by allowing the Will to be probated because it was undated, not self-proving, and otherwise failed to comply with the attestation requirements for a valid will.
We have considered these arguments in light of the record and applicable law. We affirm.
Decedent died on November 15, 2008, survived by six of her eleven children, and eight grandchildren. Only one grandchild, A.Q., was a minor. Following the death of A.Q.'s mother, decedent's daughter, decedent had been appointed A.Q.'s guardian.
After decedent's death, Donna Blackwell-Wooten, one of decedent's daughters, found the will among decedent's possessions. According to Jeffries, Blackwell-Wooten took the Will and declined to allow other family members to review it. Blackwell-Wooten and her sister Linda Lee then presented the Will for probate. The six-page document was drafted by decedent's long-time attorney Deborah Winston, who notarized the instrument and observed its execution in the presence of two signing witnesses. The Will named Blackwell-Wooten and Lee executors and bequeathed the decedent's entire estate to A.Q.
Jeffries and another sister filed a caveat challenging probate of the Will. In response, Blackwell-Wooten and Lee filed a complaint to admit the Will to probate. Jeffries filed an answer and a counterclaim, alleging the Will was invalid or the result of undue influence. Following oral argument, without benefit of an evidentiary hearing, the probate judge dismissed the caveats and admitted the Will to probate.
On appeal, we reversed. In the Matter of the Estate of Albertha Blackwell, No. A-4816-08 (App. Div. May 3, 2010) (slip op. at 10). Noting the Will was not self-proving, we stated: the purported Will uses signature language for the testator that is consistent with a will drafted under N.J.S.A. 3B:3-2, but the last page lacks the required language for the attestation clause used in the context of a will drawn under that statute.
Instead, the witnesses signed their names below language more or less consistent with a self-proving affidavit pursuant to N.J.S.A. 3B:3-4, but the purported testator did not. In addition, the document, including the witnesses' signature and the scrivener's jurat, is undated. There may also be some ambiguity as to whether page six is part of the Will or a separate document. Although it is numbered consistent with being the last page of a six page document, there is no signature by the testator on the side as there was on the first five pages. However, that may be the scrivener's error, as apparently was the failure to date the document. [Id. at 9.]
We remanded the matter for a plenary hearing to determine the authenticity and validity of the will. Id. at 10.
On remand, the probate judge conducted a three-day hearing. On behalf of plaintiffs, testimony was presented by Blackwell-Wooten, her husband Albert Wooten, Winston, as scrivener, and the witnesses to decedent's execution of the Will, Beverly Johnson and Bessie Dunk. Jeffries and decedent's son Nathan Blackwell testified on behalf of defendants.
The trial judge was unconvinced by defendant's claims that deficiencies obviated the Will's validity and, in a written opinion, found no evidence to support Jeffries' assertion that the Will was not signed by decedent. Rather, the judge found persuasive the attestation clause above the decedent's signature, which provided:
IN WITNESS, I assign my name to this instrument, publish an declare that it is my Will, consisting of six (6) pages, inclusive of the attestation and acknowledgement clauses, this is my free and voluntary act for the purposes herein expressed, and that I am eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.
Furthermore, the judge credited Winston's testimony regarding the circumstances surrounding the Will's drafting and execution along with the witnesses' testimonies that decedent acknowledged the document was her will and voluntarily signed the Will in their presence.
The trial judge concluded "the [p]laintiffs . . . established, through clear and convincing evidence, that the document at issue is the Last Will and Testament of Albertha Blackwell; that she signed it voluntarily; that the witnesses signed the self-proving affidavit and witnessed her signature; and the [W]ill should be admitted to probate." Jeffries appealed.
Thereafter, Jeffries filed a motion and plaintiffs filed a cross-motion seeking attorneys fees. The trial judge concluded he lacked jurisdiction and declined to consider the motions. See R. 2:9-1(a).
In our review, generally "findings by the trial court are binding on appeal when supported by adequate, substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998) (citing, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Furthermore, deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Only when these conclusions are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence'" will we intervene to ensure the interests of justice. Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, supra, 65 N.J. at 484). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, Jeffries argues the trial court's findings were not supported by the evidence presented as the Will's execution was not substantially in compliance with N.J.S.A. 3B:3-2. We disagree.
To comply with the necessary formalities of a valid will, a document must be: 1) "in writing," N.J.S.A. 3B:3-2(a)(1); 2) "signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction," N.J.S.A. 3B:3-2(a)(2); and 3) "signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will . . . or the testator's acknowledgement of that signature or acknowledgement of the will[,]" N.J.S.A. 3B:3-2(a)(3). A separate self-proving clause, in the form provided by N.J.S.A. 3B:3-4, obviates the need to formally produce the witnesses to attest to the testator's execution of the document. In re Will of Ranney, 124 N.J. 1, 8-9 (1991). Also, when a document lacks the formalities provided by N.J.S.A. 3B:3-2, the writing may nevertheless be "treated as if it had been executed in compliance with N.J.S.A. 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute . . . the decedent's will[.]" N.J.S.A. 3B:3-3.
In our prior opinion, we noted "at issue was whether page six of the [Will], which contains what was apparently intended as the self-proving affidavit required by N.J.S.A. 3B:3-4, can also be considered as the attestation clause for the purpose of N.J.S.A. 3B:3-2(a)(3)." In the Matter of the Estate of Albertha Blackwell, slip op. at 6-7. We remanded for the trial court to conduct a plenary hearing to determine whether clear and convincing evidence showed the execution of the Will was in substantial compliance the attestation requirement of N.J.S.A. 3B:3-2. See Ranney, supra, 124 N.J. at 14 ("[I]f the witnesses, with the intent to attest, sign a self-proving affidavit, but do not sign the will or an attestation clause, clear and convincing evidence of their intent should be adduced to establish substantial compliance with [N.J.S.A. 3B:3-2].").
Jeffries contests the trial judge's findings, arguing statutory formalities were completely disregarded. We disagree.
The trial judge found that on March 1, 2007, despite the omission of a date, two independent witnesses and decedent's long-time attorney testified they each saw decedent execute the document, the same document to which they affixed their signatures on, which was intended as a self-proving affidavit. The judge further found credible, clear, and convincing testimonial evidence that established decedent voluntarily signed the document, following her expressed understanding she intended the document as her will. The affidavit on page six, contained the signature of both witnesses, and the jurat executed by Wilson as an attorney, acknowledging the decedent executed the document in their presence. We determine the totality of the evidence supports the trial judge's findings and conclusions that the Will was "signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will." N.J.S.A. 3B:3-2(a)(3).
We also have considered Jeffries' additional arguments challenging the Will's validity based on a claim it is "internally inconsistent and self-contradictory" and that the circumstances surrounding the Will's discovery raise questions regarding its legitimacy. We reject these contentions as meritless. R. 2:11-3(e)(1)(E). Although Jeffries casts suspicion on Blackwell-Wooten's credibility, challenging the circumstances surrounding her discovery of the Will and noting her secretive behavior thereafter, Jeffries offers no evidence supporting her claim the Will was a contrivance or to rebut the unequivocal testimony presented by Winston, Johnson, and Dunk evincing decedent's intention and execution of the Will.
Winston recited the facts surrounding her meetings with decedent before execution of the Will, stating she and decedent reviewed her intentions and Winston advised her to think things over. On the day of execution, Winston testified she asked decedent, in the presence of the witnesses, whether the document was her will and did it express her intentions at the time of her death. Thereafter, she explained "we all sat there and . . . watched [the decedent] sign[.]" Johnson concurred, identifying the Will as the document executed by decedent and stating she signed page six after she and Dunk "witnessed the will." Dunk also remembered watching decedent sign the Will. Each witness also testified she executed the affidavit in the other's presence.
We find no basis to disturb the trial judge's findings surrounding the decedent's intention to execute and execution of the document as her Last Will and Testament. Further, the evidence clearly and convincingly established the Will substantially complied with N.J.S.A. 3B:3-2 and was intended by decedent to be her Last Will and Testament. Accordingly, we conclude the Will was properly admitted to probate.
Finally, the record does not disclose why Jeffries failed to present her request for counsel fees at the time of the remand hearing as we previously directed. See In re Blackwell, supra, slip op. at 10. Rather, she deferred the issue until after she filed this appeal. Once this proceeding commenced, she failed to seek a limited remand to allow the trial court to consider the issue. R. 2:9-1(a). Further she never amended her notice of appeal to include the trial judge's order determining he lacked jurisdiction to address the counsel fee issue. See Shin v. Toys From the Attic, Inc., 375 N.J. Super. 300, 303 (App. Div. 2009).
We again decline to consider Jeffries' claim seeking the estate to pay her counsel fees and costs because it was not properly presented to the trial court. See Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 339 (2010) (holding that "issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest"). We determine the issue does not warrant the exercise of our original jurisdiction. See R. 2:10-5 (allowing the appellate to exercise original jurisdiction when "necessary to the complete determination of any matter on review"). See also N.J. Const. art. VI § V, ¶ 3, (authorizing the exercise of "original jurisdiction as may be necessary to the complete determination of any cause on review."). We will not exercise original jurisdiction where factual disputes require resolution, a circumstance particularly unsuitable for the assumption of original jurisdiction. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 2:10-5 (2012) ("[I]t is clear that resort [to original jurisdiction] by the appellate court is ordinarily inappropriate where . . . further fact-finding is necessary in order to resolve the matter.").
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