Discovery Should Have Been Allowed in Undue Influence Suit

In re Estate of Counselman, Docket No. A-1456-21 (N.J. Super. App. Div. June 28, 2023)

This decision focused on whether summary disposition was proper in a will contest rooted in a writing intended as a will.

The decedent, Elizabeth Counselman (“Counselman”), left an estate valued at more than $4 million. Plaintiff Carl Oxholm, III (“Oxholm”) sought probate of an unsigned will under which he was named executor and a beneficiary.

In October 2020, Counselman suffered from cancer.  She was not married and had no children.  She contacted a New York attorney to discuss preparing a new will. Counselman initially wanted the new will to leave eighty percent of her estate to her cousins and twenty percent to nine charities; however, she later settled on seventy percent to her cousins and thirty percent to the charities, respectively.

Around the same time, Counselman submitted to a mental status examination.  The doctors opined that Counselman had mild cognitive decline recommended that her financial matters should be monitored closely because she appeared to be vulnerable to exploitation.

On May 19, 2021, Counselman’s attorney provided Counselman with a draft of her new will. Counselman allegedly advised him that she was satisfied with its contents, and they scheduled a will signing for June 9, 2021.  On that date, the attorney met with Counselman and the proposed witness to the signing, but Counselman was too weak to sign the will. The attorney met with Counselman on June 16, 2021, but again she was too weak to sign the will.

Counselman died three days later without signing the will.

Counselman executed her first will in 2010, which she updated in 2013 and 2017.  Under her 2013 will, Counselman left approximately two-thirds of her estate to ten cousins, including Oxholm, and the other third to six charities.   Counselman removed her cousins completely in her 2017 will and left the entire estate to certain charities (“Charities”).If the unsigned 2021 will was deemed unacceptable for probate, it appeared that the 2017 will would be probated.

Oxholm was the sole executor of the unsigned 2021 will, whereas the 2017 will designated him co-executor with the Glenmede Trust Company (“Glenmede”) and another individual.  Both the 2010 and 2013 wills designated Oxholm as co-executor with Glenmede.

In September 2021, Oxholm filed a Chancery Division complaint to probate Counselman’s unsigned 2021 will.  The application was opposed by the Charities, the New Jersey Attorney General (as a representative of the charitable interests) and Glenmede.

The trial court recognized that the unsigned 2021 will did not satisfy the formal requirements of N.J.S.A. § 3B:3-2.  However, it determined that Counselman intended the document to be her last will and testament and admitted it to probate under N.J.S.A. § 3B:3-3. The trial court determined that Oxholm established by clear and convincing evidence that Counselman reviewed the unsigned will and gave her final assent to it.  Finally, the judge concluded that, although a confidential relationship existed between Oxholm and Counselman, there were no suspicious circumstances to support a finding of his undue influence on her decision to change her estate planning.  The trial judge granted the application in a summary manner.

The Charities and the Attorney General appealed. They argued that the trial court erred in summarily granting the application and denying their request for discovery to resolve genuine disputes of material fact concerning whether Counselman        (1) had the requisite testamentary capacity to direct preparation of the unsigned 2021 will; (2) was unduly influenced to direct preparation of the unsigned 2021 will; and (3) intended the unsigned 2021 will to be her last will and testament.

The Appellate Division reversed and remanded, finding that the trial court erred in granting summary relief without first allowing discovery as requested by the Charities and the State because genuine disputes of material facts existed concerning Counselman’s testamentary capacity to create a new will and the potential undue influence on Counselman’s purported decision to distribute less of her estate to the Charities.

The Appellate Division explained:

As we expressed in Macool, the record contains no clear and convincing evidence from which a court ruling on summary disposition could conclude that Counselman “confer[red] with counsel after reviewing the document to clear up any ambiguity, modify any provision, or express . . . final assent.” 416 N.J. Super. at 309; see also In re Purrazzella, 134 N.J. 228, 240 (1993) (recognizing that a court must possess “a firm belief or conviction as to the truth of the allegations sought to be established” to satisfy the clear and convincing standard) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). This is unlike the situation in In re Estate of Ehrlich, 427 N.J. Super. 64, 74-75 (App. Div. 2012), where the unsigned will was prepared and reviewed by the testator—a trusts and estates attorney—who gave final assent to the will through a handwritten notation stating he sent the original to the executor and trustee of his estate, and “in the years following the drafting of this document . . . repeatedly orally acknowledged and confirmed the dispositionary contents therein to those closest to him in life.”