In the Matter of the Estate of John F. Piazza, Deceased, No. A-2853-16T2, 2018 WL 4354298 (N.J. Super. Ct. App. Div. Sept. 13, 2018).

Collateral estoppel and related concepts were deemed to bar the probate of a codicil.

John F. Piazza (“decedent”) and his wife, Elly Piazza, had three children: Barbara, John H., and Debra. In February 1992, the decedent and his wife prepared joint and reciprocal wills.

Barbara claimed that in 2007, the decedent executed a codicil to his 1992 will, providing that if his wife predeceased him, his residuary estate was to be divided between two of his children, Barbara and John H. Barbara also cited a 2007 letter by which the decedent and his wife explained to Debra their reason for disinheriting her.

Elly Piazza passed away in 2008. The decedent passed away in 2012.

Two and one half years after the decedent’s death, in May 2015, Barbara probated the decedent’s estate and was appointed executrix. She presented the decedent’s 1992 will, without the codicil, even though she had a copy of the codicil.  In her application for probate, Barbara listed the decedent’s next of kin as herself and John H., but not Debra. Id. at *2.

In August 2015, an action was brought in New Jersey Chancery Division on behalf of Debra (who had been deemed incapacitated), against Barbara and John H., seeking to partition real estate in Hopatcong, New Jersey, in which the decedent had an interest, and for an accounting of all of the decedent’s property, assets and money. Id.

The trial court granted judgment to Debra. It found that Barbara was not truthful in her probate petition by not identifying Debra as next of kin, and that when she probated the 1992 will, Barbara had the 2007 codicil but did not submit it for probate.  The court issued an order of final judgment on September 2, 2016. Id. Among other rulings, the court required the sale of the Hopatcong property and the equal division of the proceeds between the three children based on the 1992 will.  Barbara did not appeal.

On September 30, 2016, Barbara filed an order to show cause and verified complaint in the Probate Part, seeking to amend probate of the decedent’s estate to include the 2007 codicil. She sought relief under Rule 4:50-1(a), (b), and (f) from the September 2, 2016 judgment, alleging that she did not have the codicil or letter when she probated the will.  She claimed she discovered them prior to the trial but that the trial court would not allow the codicil into evidence.  Debra opposed the application. Id. at *2.

On the return date, the court denied the order to show cause, and Barbara appealed.

The Appellate Division first determined that Barbara’s attempt to probate the codicil was time-barred:

Under Rule 4:85-1, Barbara had six months to challenge probate of the will.  Her letters testamentary were issued May 22, 2015, giving her six months from then.  She did not ask to probate the codicil within that timeframe.  We agree that it was too late to rely on the 2007 codicil, particularly when she probated the 1992 will and omitted reference to her sister.

Id. at *3.

The Appellate Division also affirmed based on collateral estoppel:

The codicil was the same in both proceedings. Barbara litigated the codicil issue in the prior proceeding because she wanted to preclude Debra from having an interest in the Hopatcong property by introducing the codicil in that case.  Rejection of the codicil was essential to the September 2, 2016 judgment because if the document were accepted as a codicil, Debra would not inherit under the will.  Barbara was a party in both proceedings.

Applying the doctrine here avoids repetitious litigation. Barbara had an adequate opportunity to address the codicil in the first action.


The appeals court likewise agreed that R. 4:50-1 provided no basis for relief.  No newly discovered evidence existed, and Barbara had not appealed the September 2, 2016 judgment.