Court Rules Forgery Must Be Proven By Clear and Convincing Evidence

This is an unreported Appellate Division opinion arising out of Cumberland County. Richard D. Byer, Sr. (“Richard”) died in October, 2012 after having been diagnosed with lung cancer and suffering a stroke. Richard’s estate had assets of nominal value. Richard had a pension with a death benefit of approximately $440,000 and a life insurance policy with a death benefit of approximately $16,000.

After he had been diagnosed with cancer, and about three months prior to his death, Richard changed the beneficiary designations on the pension and life insurance benefits to name Tammy Aglialoro (“Tammy”) as the sole beneficiary. Tammy had been Richard’s long time significant other. The change in the beneficiary designations was effectuated by a single form filled out by Tammy and purportedly signed by Richard. Prior to this change, Richard’s daughter, Barbara Angelucci (“Barbara”) and Barbara’s daughter, Amber Angelucci (“Amber”), were the beneficiaries. Richard’s Will left his minimal probate assets to Tammy and to Richard’s cousin, Gary Cheli. The Will expressly excluded Barbara and Amber.

Barbara and Amber filed an action in the Probate Part in Cumberland County to challenge the changes to the pension and life insurance beneficiary designations. Barbara and Amber argued (i) the change in beneficiary designations was the result of undue influence and (ii) Richard’s signature on the beneficiary designation change form was forged. At trial, Tammy conceded that she had a confidential relationship with Richard. Tammy denied exerting undue influence and also denied that Richard’s signature on the designation form was a forgery. Both sides presented handwriting experts at trial.

The record also disclosed significant turmoil within Richard’s family prior to his illness. Richard sued his ex-wife and children, including Barbara, for financial misconduct, although Richard voluntarily dismissed that lawsuit shortly before his death. Plaintiffs alleged that Richard ultimately reconciled with Barbara and that his true intention was to leave his pension benefit to Amber to finance her education.

In a twenty-one page opinion which turned primarily upon the court’s credibility determinations, the trial court rejected plaintiff’s claims. The judge found defendant’s witnesses to be more credible than those presented by plaintiffs. The judge specifically found the testimony of James Spregg, Richard’s former caretaker, who testified that Richard intended to leave his assets to plaintiffs and who accused Tammy of improprieties, was incredible and biased.

The trial court found that plaintiffs had not established the legal elements of undue influence. The judge found that the evidence clearly and convincingly showed that Richard’s Will was not overborne, and that Richard was the dominant force in his relationship with Tammy and not mentally weak. The trial court also found that Richard was mentally competent and in control of his affairs until he passed. The trial court opinion also refers to Richard’s strained relationship with Barbara, her infrequent visits, the upsetting nature of her phone calls, and Richard’s general distrust of her. The court observed that Richard’s decision to change the beneficiary of his pension death benefit and his life insurance death benefit was not unnatural and, “one could argue that it should have been expected.”

The trial court also rejected the claims of forgery. Specifically, the trial court noted that, in the civil rather than criminal context, forgery, as a type of fraud, must be proven by clear and convincing evidence. The court found that plaintiffs had not met that burden.

In sum, the trial court found that Richard was not the victim of undue influence or fraud, but that Richard had made hard choices which the court was going to enforce.

Barbara and Amber appealed. The Appellate Division briefly discussed the law regarding undue influence and forgery. The Appellate Division affirmed, noting that the trial judge had meticulously and correctly applied the law on each point.