NJ Trial Court Mistakenly Applied Its Discretion By Not Allowing Filing Extension

In the Matter of the Estate of Florence Fisher, No. A-0515-16T, 2017 WL 5895758 (N.J. Super. Ct. App. Div. Nov. 28, 2017).

These two pieces of litigation involved the efforts of plaintiff Meredith A. Fisher to void estate planning by her mother, the late Florence Fisher.

In the first action — the “trust action” — plaintiff sought to remove defendant Allan C. Bell as trustee of an inter vivos trust created by Florence for plaintiff’s benefit, alleging he breached his fiduciary duty of loyalty. The trial court granted defendant’s motion for summary judgment, finding plaintiff presented no proof of defendant’s improper administration of the trust. The other litigation was the “will action,” in which plaintiff alleged undue influence as to Florence’s will.  The trial court granted summary judgment on the ground that plaintiff’s complaint was untimely filed and without good cause for an extension of time under Rule 4:48-2.  Plaintiff, a New York resident, was deemed to have filed the will action after her six-month deadline.  The court also determined that plaintiff presented no evidence of undue influence to warrant the relief requested.

Plaintiff appealed. (She was pro se on the appeal and appears to have been pro se in the underlying case.)

In the trust action, plaintiff sought removal of defendant as trustee under N.J.S.A. § 3B:14-21(c) (a fiduciary may be removed if he or she “[e]mbezzles, wastes, or misapplies any part of the estate for which the fiduciary is responsible, or abuses the trust and confidence reposed in the fiduciary”).  She claimed that due to defendant’s choices in administering other unrelated trusts, he was unable to properly administer her trust.

The Appellate Division explained:

Courts are reluctant to remove a fiduciary appointed by a grantor absent specific proof of fraud, gross carelessness or indifference. See Braman v. Central Hanover Bank & Trust Co., 138 N.J. Eq. 165, 196-97 (Ch. 1946).  Not only should the court be reluctant to remove a fiduciary, but “so long as an executor or trustee acts in good faith, with ordinary discretion and within the scope of his powers, his acts cannot be successfully assailed.” Connelly v. Weisfeld, 142 N.J. Eq. 406, 411 (E. & A. 1948).  Disagreement between a beneficiary and a fiduciary is not cause for removal. In re Koretzky, 8 N.J. 506, 531 (1951).  “[T]here must be a demonstration that the relationship will interfere materially with the administration of the trust or is likely to do so.” Wolosoff v. Csi Liquidating Tr., 205 N.J. Super. 349, 360-61 (App. Div. 1985).  Indeed, to remove a trustee there must be facts to warrant such action. See Matter of Konigsberg, 125 N.J. Eq. 216, 219 (Prerog. Ct. 1939).

Id. at *6-7.

Accordingly, the Appellate Division affirmed the trial court’s ruling: “plaintiff failed to demonstrate defendant acted improvidently in managing plaintiff’s trusts.  Confronted with defendant’s certification that the trust’s assets have been properly managed, plaintiff presented no evidence of fraud, indifference, bad faith, or carelessness by defendant.” Id. at *7.

As to the will action, initially the Appellate Division disagreed with the trial court as to the claims being time-barred, concluding that the trial court mistakenly applied its discretion by not allowing plaintiff a thirty-day filing extension for good cause:

The record shows that within six months of defendant’s appointment as executor, plaintiff attempted to file a pro se complaint making the same allegations and seeking the same relief set forth in the two complaints she later filed that are the subject of this appeal. However, a court clerk did not accept her filing; instead advising her that she had to file two separate complaints.  Plaintiff contended her preparation of the two complaints was delayed when she became ill.  She also argued she had to represent herself because her sisters delayed payment of her trust funds in order to prevent her from hiring a lawyer to contest the will.

We agree with the court that plaintiff’s inability to afford counsel is not a basis for a good cause finding. In re Estate of Schifftner, 385 N.J. Super. 37, 44 (App. Div.), certif. denied, 188 N.J. 356 (2006).  We also take no issue with the court’s finding that there was no specific support for plaintiff’s claim that her illness prevented her from meeting the filing deadline.  Nevertheless, we conclude the court should have recognized plaintiff’s specific and non-speculative allegation that her filing would have been timely but for the court clerk’s action.  Under our summary judgment guidelines, these factual allegations should have been viewed in the light most favorable to plaintiff in her opposition to defendant’s summary judgment motion.  While her initially submitted complaint may have required a subsequent amendment to conform to the court rules, it should have been considered timely filed.

Id. at *8-9.

However, the Appellate Division still upheld summary judgment against plaintiff in the will action because the trial judge properly found that there was no proof that Florence’s will was the product of undue influence.