In the Matter of the Estate of Kaczmarek, No. A-1356-17T3, 2018

In the Matter of the Estate of Kaczmarek, No. A-1356-17T3, 2018 WL 6186536 (N.J. Super. Ct. App. Div. Nov. 28, 2018).

Defendant appealed summary judgment admitting the last will of Theodore A. Kaczmarek, deceased (“the decedent”) to probate. The trial court also directed the issuance of letters testamentary to the plaintiffs, as co-executrices, and dismissed the defendant’s caveat and counterclaim. Id. at *1-2.

The defendant was the decedent’s niece by marriage. After the defendant’s aunt died, the decedent executed a will in 2009 leaving his entire estate to the defendant, and he executed a revocable living trust designating the defendant as the sole trustee.  Both documents were drafted by a lawyer procured for the decedent by the defendant. Id. at *2.  Thereafter, the decedent retained a new lawyer to draft a new will for him. Id. at *3.  The decedent’s latest will of 2014 (“2014 will”) omitted the defendant entirely. Id. The Court relied on the scrivener’s deposition testimony that he drew four wills for the decedent and he recalled the decedent’s competence never changed during the time that he knew him.  As to the execution of the 2014 will, the scrivener testified that he noticed no decline in the decedent’s mental capacity, describing him as “still…sharp”. Id. at *4.  The court found nothing to contradict the attorney’s opinion that the decedent possessed testamentary capacity. Id. The Appellate Division affirmed.

The defendant also alleged that the plaintiffs abused their position by helping the decedent with his bills as well as grocery shopping and driving him to appointments. In that regard, the defendant presented an expert report by a psychiatrist, who opined the decedent’s medical records showed a history of dementia that affected his decision-making capacity. Id. at *4.  Plaintiffs’ moved to strike the report as a net opinion.  The trial court granted the plaintiffs’ motion, finding the expert failed to identify the specific facts in the record on which he based his opinions, which rendered the report unreliable and inadmissible. Id. at *5.