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In the Matter of the Probate of the Alleged Will of Joan Pennella

October 17, 2012

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF JOAN PENNELLA, DECEASED.


On appeal from the Superior Court, Chancery Division, Probate Part, Bergen County, Docket No. P-376-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 2, 2012 -

Before Judges Reisner, Yannotti and Hoffman.

Defendants Samuel Pennella (Sam) and Carol David appeal from a November 16, 2011 order admitting the May 24, 2010 will of decedent Joan Pennella*fn1 to probate and dismissing a caveat filed against the will.

After Joan died on July 17, 2010, her oldest son, Carl Pennella, Jr., filed a complaint seeking to probate the 2010 will, to be appointed executor pursuant to the terms of the will, and to lift a caveat that Sam had filed. Sam and Carol (defendants), two of Joan's younger children, filed a contesting answer and a counterclaim alleging that Joan lacked testamentary capacity and that Carl had exercised undue influence over her. Another child, Madeline Pennella, also filed a contesting answer, but settled her claim prior to trial. After a bench trial, Judge Harry G. arroll rejected defendants' claims.

On this appeal, defendants argue that the trial judge erred in finding that Carl did not have a confidential relationship with Joan and that there was no proof of suspicious circumstances. They also challenge several of the trial judge's evidentiary rulings. Having reviewed the record, we conclude that defendants' arguments are without merit and we affirm, substantially for the reasons stated in Judge Carroll's comprehensive written opinion, issued November 16, 2011.

I

The evidence is summarized at length in Judge Carroll's opinion and need not be addressed in the same detail here.*fn2 Joan Pennella and her husband had seven children: Carl, Sam, Carol, Madeline, Joseph Edward Pennella (Ed), Joan M. Pennella (Joanie), and Rosanne Pennella. Joan's husband died in 1995 leaving her a multi-million dollar estate. Beginning in 1996, Joan began making substantial annual gifts to each of her children. In 1996, she also made a will leaving her estate to her children in seven equal shares.

However, in 2006, she made a new will, leaving her estate to a living trust, of which only five of her children -- Carl, Ed, Joanie, Rosanne, and Madeline -- were beneficiaries. Sam and Carol were excluded from the trust. According to the contemporaneous notes of Joan's probate attorneys, in 2006 Joan expressed concern that Carol was a spendthrift, who had depleted hundreds of thousands of dollars Joan had already gifted to her and would probably waste any further assets left to her directly. Joan also expressed resentment that Sam had borrowed huge sums of money from her, much of which he had failed to repay.

In particular, in 1997, Sam borrowed $850,000 from Joan to purchase some land. He gave Joan a first mortgage on the property and began making mortgage payments, but stopped making payments after three years. In 2001, he borrowed about $1.25 million from her to buy a jet airplane, promising to repay the money in a couple of weeks. After almost a year, he repaid one million dollars, but refused to pay the remaining $250,000. In 2001 and 2002, Sam also borrowed over $300,000 from Joan to cover margin calls on his stock investments, and failed to repay her. On May 13, 2005, Joan sent Sam a letter telling him that he had until August 15 to pay the outstanding mortgage balance, and if he failed to do so, she would not leave him an inheritance beyond the loans she had given him. Joan's 2006 will and all of her subsequent estate plans excluded Sam, except for leaving him a small bequest. She also ceased giving him any annual gifts.

After Carol developed a serious health problem, Joan amended her estate plan in 2007 to give Carol a share in the testamentary trust. However, in 2008, Joan once again removed Carol from her estate plan, other than to leave her a small bequest. That decision stemmed from the following incidents.

First, Carol borrowed a valuable tanzanite necklace from Joan, and refused to return it despite Joan's repeated requests that she do so.

Second, during a visit to Joan's house in December 2007, when Joan once again asked for the necklace, Carol directed a brutal tirade at her mother, telling Joan that she was "a horrible mother," she was "full of shit" and should "go fuck herself," and she should "shove her money up her ass." Rosanne, a witness the judge found entirely credible, was present during this ...


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