NJ Appellate Court Finds Confidential Relationship, But No Suspicious Circumstances
In the Matter of the Estate of Winter, 2017 N.J. Super. Unpub. LEXIS 2434, No. A-0250-15T4 (N.J. Super. Ct. App. Div. Sept. 27, 2017).
This case arose from the Morris County, Probate Part.
Charles W. Winter, Jr. (the “decedent”) died testate on June 13, 2013. Following his death, decedent’s cousins instituted a will contest as they were named residuary beneficiaries in the decedent’s Last Will and Testament executed in 1999. Id. at *2. The defendants consisted of decedent’s cousin and close friend of 60 years, his girlfriend of 30 years, and his best friend since childhood, all of whom were named as sole beneficiaries under a 2013 will made while decedent was in the hospital with cancer. Id.
The scrivener testified that decedent was in poor physical shape but lucid when he gave directions about the new will and when he executed it. Id. at *5. The scrivener was decedent’s long-time friend. The scrivener met with the decedent while he was in the hospital. Id. The attorney handwrote the will and showed it to the decedent. Id. at *5-6. The decedent directed defendants to prepare and provide to him a list of family members he wanted included in his will – the attorney read the decedent this list. Id. The decedent acknowledged each name by verbally saying yes. Id. at *6. The decedent named one of the defendants, his cousin, as executrix.
On February 3, 2013, the decedent executed the handwritten will and the defendants witnessed the execution. Id. at *6. On February 4, 2013, the attorney had the handwritten will reduced to a formal will. Id. He returned to the hospital to have the decedent execute it, but the decedent was in bad shape. Id. He returned that evening and the decedent had recovered, so the attorney discussed the formal will with him and he executed the will with the defendants again witnessing the execution. Id. The will expressly revoked all prior wills and codicils. Id.
The following day, the decedent realized he forgot to include one of the defendants, his best friend since childhood, as a beneficiary. Id. He told the attorney he wanted to add one of the defendants as a beneficiary and instructed him to prepare a new will. Id. at *7. On February 7, 2013, the attorney returned to the hospital with the new will. Id. He spoke with the decedent privately to ensure he intended to make the bequests in the Will and that he fully understood the document. Id. The attorney testified that the decedent was clearly in a condition to execute the document. Id. Decedent executed the new will. Id.
Defendants visited with the decedent almost every day he was in the hospital, whereas the cousins never visited him. Id. at *4. In late February 2013 decedent recovered enough to leave the hospital and resume his normal activities. Id. at *8. Defendants continued to visit with decedent and care for him during his illness. Id. In March 2013, decedent instructed the attorney to prepare a Power of Attorney and Advanced Directive naming defendants as agents under the Power of Attorney and health care proxies under the Advanced Directive. Id. Decedent executed these documents on March 16, 2013. Id. The decedent died on June 13, 2013. Id. at *9. The cousins challenged the will based on undue influence and lack of testamentary capacity.
The trial judge denied the cousins’ motion to amend the complaint to add claims of mistake, lack of testamentary capacity and forgery with respect to the decedent’s pension. Id. at *10. The cousins filed the motion to amend late in litigation after discovery was completed. Id. at *11. The trial judge found no evidence of lack of testamentary capacity, no confidential relationship between decedent and defendants and nothing to suggest suspicious circumstances. Id. at *11-12. In addition, the trial court found their claim of mistake lacked factual and legal support and the will was clear and unambiguous. Id. at *12-13.
The Appellate Division affirmed the trial court’s findings. However, the appellate division disagreed with the trial court on the finding of no confidential relationship. Id. at *17.
First, as to the trial court’s denial of the motion to amend the complaint, the appellate court noted R. 4:9-1 applies and although such motions are granted liberally, there are two-steps to evaluate: (1) whether the non-moving party will be prejudiced; and (2) whether granting the amendment would be futile. Id. at *14-15. As to the claims for lack of testamentary capacity, the cousins relied on expert reports that were not properly before the court as they were served in violation of a court order. Id. at *12. The cousins never moved to extend discovery to permit late service. Id. Nevertheless, the appellate court noted that the experts did not opine the decedent lacked testamentary capacity, rather they merely opined he had diminished capacity and was subject to undue influence due to his severe disabilities. Id.
As to the claim for mistake, the court found there was no ambiguity in the Will. Thus, the cousins lacked a factual and legal basis. Id. at *13. As to forgery with respect to decedent’s pension, the court noted that the girlfriend was named as the beneficiary and although she could not confirm the decedent’s signature, does not prove forgery. Id. at *13-14. Accordingly, the denial of the cousins’ motion to amend was affirmed.
Second, as to the trial court’s order granting defendants’ motion for summary judgment and dismissing the complaint with prejudice, the appellate court affirmed. The cousins argued the trial court erred in failing to shift the burden to the defendants. Id. at *16. The court noted that the challenger of a will bears the burden of establishing undue influence in execution of a will. Id. When there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption. Id. The court noted that a “confidential relationship” exists when circumstances make it certain that the parties do not deal on equal terms. Id. at *17. While “suspicious circumstances” do not require explanation and need only be slight. Id.
The appellate court did find a confidential relationship existed between the defendant and the defendants because the defendants had a close familial and personal relationships with the decedent; the decedent trusted the defendants; the decedent depended on the defendants – for medical, personal, and financial affairs. Id. at *17-18. As a result, the court found that the parties did not deal on equal terms. Id.
As to suspicious circumstances, the Appellate Division found that arguably suspicious circumstances existed because the defendants were present when the decedent called his attorney to the hospital to prepare his will – however, the court found there was no evidence of coercion or mental, physical exertion that destroyed the decedent’s free will. Id.
Finally, the cousins argued on appeal that an adverse inference existed against defendants and the judge should have recused himself because of an appearance of impropriety, but the court found such claims without merit and the cousins never moved for recusal of the trial court; therefore it was waived. Id. at *18.