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In the Matter of the

November 21, 2012

IN THE MATTER OF THE ESTATE OF MICHAEL FLEISCHER


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. 184571.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 5, 2012 -

Before Judges Espinosa and Kennedy.

Plaintiff Robin J. Farrington appeals from the dismissal of her complaint, challenging the will of her father, decedent Michael Fleischer, who died on December 23, 2009.

Although she had not seen the contents of her father's will, dated October 5, 1995 (the October 1995 will), plaintiff filed a caveat on January 5, 2010. The will provided that plaintiff and her sister, both decedent's children from a prior marriage, were to inherit $1,000 each, with decedent's second wife, Dolores Fleischer (Fleischer), inheriting the remainder of the estate.

Plaintiff's verified complaint and order to show cause, filed April 15, 2010, alleged that the October 1995 will "was not drafted by the attorney whose name appeared on the Will." Plaintiff claimed that, in 2005, her father drafted an updated will, which he discussed with her. She alleged that Fleischer and her father had domestic violence issues in 1995. Plaintiff alleged further that her father had been the executor of his brother's estate in 2003 and that she was "uncertain" if decedent had commingled assets from that estate with his own.

The trial court signed the order to show cause, which prohibited Fleischer from transferring any of decedent's property, and scheduled a hearing for June 8, 2010. Ralph Elefant, the executor designated in the October 1995 will, filed a verified complaint and order to show cause, seeking to dismiss plaintiff's caveat and admit decedent's October 1995 will to probate. Hearings were scheduled for both orders to show cause on June 8, 2010.

Elefant and Fleischer (collectively, defendants) each filed answers and affirmative defenses to plaintiff's verified complaint. Elefant's answer included a certification from the attorney, George Schonwald, who "absolutely confirm[ed] that [he] did in fact prepare the Last Will and Testament at the request of the decedent[.]" Schonwald further noted that decedent's will was made "freely and voluntarily and was not subject to any duress or undue influence."

On the return date, plaintiff requested an adjournment so she could retain new counsel because her attorney had withdrawn. The court dismissed plaintiff's caveat; dismissed plaintiff's order to show cause and verified complaint without prejudice; admitted the October 1995 will for probate; and enjoined Elefant from making any distributions from the estate for forty-five days.

On July 7, 2010, plaintiff, acting pro se, submitted a second order to show cause and an amended verified complaint. Plaintiff alleged that Fleischer had been after decedent's money from the moment she met him in 1987 and that decedent "felt as though he could not trust his wife with access to his funds" during his lifetime. Plaintiff claimed that on the morning after decedent's death, Fleischer demanded the release of all of decedent's funds. Moreover, despite Schonwald's certification, plaintiff continued to question the "purported scrivener" of the will.

Plaintiff also reiterated her concern that she had been denied an inheritance from her uncle's estate due to decedent's commingling of assets. Plaintiff alleged she was belatedly seeking that inheritance because her father had intimidated her when she sought money from her uncle's estate and had violently and sexually abused her when she was a child. Plaintiff asked the court to freeze decedent's assets; to vacate the order to probate the October 1995 will; and to probate a will dated August 24, 1995 (the August 1995 will), which, she contended, was consistent with decedent's pre-marital agreement with Fleischer and not the product of undue influence.

With the July 7, 2010 complaint and order to show cause pending, plaintiff submitted an August 4, 2010 motion for "reconsideration and opposition" to the court's July 1 probate order. She explained she had previously submitted a timely objection to the probate order in count four of her amended verified complaint. She contended that she later learned the amended complaint and order to show cause were improperly submitted because they failed to include a transcript of the June 8 hearing. As a result, plaintiff sought an extension of the initial order enjoining decedent's executor, Elefant, from making any distributions from the estate for forty-five days.

On August 16, 2010, plaintiff, represented by new counsel, submitted a third verified complaint and order to show cause. In the complaint, plaintiff asked for an accounting of the estates of decedent and various family members based upon her allegation that decedent defrauded her out of receiving funds from several family members' estates. Plaintiff also contended that Fleischer mistreated decedent for years and then, after Fleischer obtained a restraining order against him, decedent executed the October 1995 will in exchange for her withdrawal of the restraining order. Accordingly, plaintiff sought an order freezing decedent's estate and declaring the October 1995 will void because of undue influence and duress.

In addition, for the first time, plaintiff alleged that she received a handwritten birthday card from decedent on January 27, 2009, which she contended should be admitted as a holographic will. The card instructed her to "handle the estate" and split the assets with her sister. In the alternative, plaintiff requested that the court admit the August 1995 will to probate. She claimed that will was consistent with decedent's and Fleischer's pre-marital agreement, which provided that each person's assets would revert to his or her children upon death.

The trial court held a hearing on plaintiff's August 4 motion for reconsideration and August 16 verified complaint on October 12, 2010, and issued an order on October 14, 2010. In pertinent part, the order denied without prejudice plaintiff's motion for reconsideration and ruled that counsel could resubmit the motion if she provided a transcript of the June 8 hearing.*fn1

The order also continued the restraint on the distribution of decedent's assets, pending submission of an accounting. Finally, the court ordered that plaintiff, at her expense, could submit a report from a handwriting expert regarding the January 2009 birthday card.

In early 2011, plaintiff submitted an expert report that analyzed the January 2009 birthday card message and concluded it was written in decedent's handwriting. On February 14, 2011, the parties entered into a consent order, which set forth a discovery schedule and their agreement as to the following: the court would reserve decision on plaintiff's motion for reconsideration; defendants could retain a rebuttal handwriting expert to examine the January 2009 birthday card and submit a report within ninety days after receipt of the original exemplars; plaintiff was permitted "to obtain fingerprinting expert testimony"; and defendants were precluded from distributing decedent's assets.

However, plaintiff failed to supply the January 2009 birthday card despite repeated requests from defendants. Plaintiff blamed her attorney for failing to comply with the order. On April 7, 2011, plaintiff's counsel filed a motion to be relieved as counsel.*fn2 Both Fleischer and the executor filed motions to compel discovery, or, in the alternative, for ...


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