Handwriting Expert Doesn’t Come in Handy: Appellate Division Dismisses Forgery and Undue Influence Claims

In re Estate of Joel Perkel, No. A-0283-20, 2022 WL 17660550 (N.J. Super. Ct. App. Div. December 14, 2022)

The plaintiffs, Jane Perkel (“Jane”) and Robert Perkel (“Robert”), were siblings and the children of the decedent, Joel Perkel.  Jane and Robert appealed from a judgment dismissing their complaint to challenge their father’s will and seek related relief.

Jane and Robert alleged that their parents divorced when their mother discovered that their father was having an affair with his secretary, whom he married after the divorce; Jane L. Perkel (“Widow”) was the decedent’s second wife and surviving spouse.

Jane (the daughter) maintained a relationship with her father after his divorce, claiming that he stated he would always provide for his children in his will.  Robert had been estranged from his father for many years after his parents’ divorce, but he reconnected with his father in 2013.

The will admitted to probate had been executed in 2007, when the decedent was seventy-five years old.  This occurred eleven years prior to his death at age eighty-six.  In the will, the decedent left his home to his stepson, Frank Cannella, reserving a life estate to his Widow.  The remainder of the estate was left to his Widow and if she predeceased him, then to seven grandchildren (five Cannella grandchildren and two children of his daughter from his first marriage, Susan Weinrub), and to Jane.  The decedent specifically made no provisions for his daughter, Susan Weinrub, or his son, Robert, “for reasons known to them.”

Jane and Robert alleged that the will was either a forgery or a product of undue influence for the following reasons: (1) the Widow was expert at signing their father’s signature and therefore the will was a forgery; (2) the Widow’s son from her prior marriage, Frank Cannella, was a retired police officer who had the training and ability to unduly influence the decedent; and (3)  the Widow’s own children were grown by the time of their marriage and therefore it was unlikely that their father would have excluded his biological children from his will in favor of his second wife’s family.

The defendants moved to dismiss the action, arguing that the suit was untimely under Rule 4:85-1.  They further asserted that the complaint failed to state a claim in that the allegations as to forgery and undue influence were conclusory and without sufficient factual support.  The trial court denied that initial motion, ruling that Jane and Robert were entitled to depose the attorney who drafted the will.

As to the questions regarding the timeliness of the suit, the will was probated and letters testamentary issued to Frank Cannella on May 13, 2019.  Jane and Robert filed their complaint on January 24, 2020, which was four months after the four-month deadline provided in Rule 4:85-1 for a will challenge.  Jane and Robert contended that the four-month period for contesting the will did not run until they received the notice of probate, which did not occur until September 30, 2019.

The lawyer who drafted the 2007 will had no recollection of the matter beyond being asked to assist in the drafting and execution of the will.  All of the firm’s files, including the decedent’s file, were destroyed in Superstorm Sandy in 2012.

Jane and Robert also retained a handwriting expert.  Their expert could not conclude whether the signature on the will was genuine and the court found the report to be “at best, inconclusive.”

The trial court ultimately dismissed the case on the merits.  The trial court discussed the timeliness of the complaint and that defense counsel had established that Robert had obtained the will from the Surrogate on May 7, 2019, three months earlier than the plaintiffs had claimed.  However, the judge did not rest his decision on the grounds it was untimely.  Instead, the trial court determined that Jane and Robert’s expert could not support their claim of forgery, and they could not establish any irregularity in the execution of the will because of the scrivener’s lack of recollection and the destruction of the file.

The Appellate Division affirmed and included three important points.  First, it agreed with the trial court that will challenges can proceed as summary actions, and potentially resolved with limited discovery.

Second, the Appellative Division also confirmed that in an attack on a will, the law presumes that the testator was of sound mind and competent when he executed the will, and the burden is on the challenger to prove otherwise by clear and convincing evidence.

Third, the appeals court agreed that the plaintiffs had failed to present any evidence in support of their allegations of forgery and undue influence even after being afforded opportunity for discovery.  Contrary to Rule 4:5-8(a), Jane and Robert filed their complaint alleging forgery and undue influence without stating any particulars.  The trial court allowed an opportunity for limited discovery and to flesh out the claims.  After four months of discovery, Jane and Robert had nothing more to offer than the bare bones pleading of their complaint.  The Rules do not permit a plaintiff to file a conclusory complaint to find out if a claim exists.  See Camden Cnty. Energy Recovery Assocs., L.P. v. N.J. Dept’ of Env’t Prot., 320 N.J. Super. 59, 64 (App. Div. 1999).