When the Complaint is Late, is Dismissal Appropriate?
IMO Estate of Lucy G. Kershak, Docket Nos. A-2897-17T3, A-4402-17T3, 2019 WL 1976066 (N.J. Super. Ct. App. Div. May 2, 2019)
This case considers whether summary judgment is appropriate when a complaint opposing probate of a will is not timely filed.
In 2008, the decedent executed a will prepared by her long-time attorney. The 2008 will provided decedent’s stepdaughter, brothers, her nephew James and her niece Frances, and created a trust for decedent’s horses, who were cared for by the decedent’s friend Mary. Id.
In 2012, decedent’s health began to decline, and Mary certified that the decedent was confused, hallucinated, and regularly had conversations with her deceased husband. James certified that decedent was having problems with her balance. In 2013, decedent was diagnosed with Parkinson’s disease. Id.
Frances took over their aunt’s care in 2014 and became her agent under a power of attorney that same year. Decedent also executed her 2014 will that excluded her brothers, her step-daughter, and Mary, and decreased James’s share of the Estate. Id. at *1-2.
The decedent died and James received his notice of probate of the 2014 will from Frances in October 2016. He filed a verified complaint seeking to set aside the probate of the 2014 will on March 13, 2017 – one month later than is permitted under R. 4:85-1. The delay was in part because James did not know he was in possession of the 2008 will which decedent had given to him in a sealed envelope and told him to open it at her death. Id.
Frances moved for summary judgment on July 21, 2017, and on September 8, 2017, the trial court granted her motion. Several motions for reconsideration and amended complaints followed, as did a motion to intervene, but ultimately, the trial court denied the motion for reconsideration of summary judgement and the motion to intervene, and the summary judgment motion filed by Frances was granted.
The appellate court reviewed the motion for reconsideration and noted that the time limit for filing a complaint to set aside probate of will may be extended 30 days upon a showing of good cause and the absence of prejudice under R. 4:85-2. The appellate court also referred to R. 4:50-1(f) that puts forth the equitable principles under which such an expansion is permitted. Id. at *3.
In this case the appellate court noted the following facts: the decedent, who was not capable of caring for herself or maintaining a conversation, allegedly created a subsequent will that vastly differed from her previous will; James was in possession of decedent’s 2008 will, but did not know it; and upon discovery of the 2008 will James promptly met with two attorneys and filed his verified complaint within a month of discovery of the 2008 will. No evidence of willful or deliberate delay and no prejudice resulted from his failure to file within the prescribed time period. Based on these facts the appellate court determined that the trial judge abused his discretion in denying the motion and failed to correctly interpret the applicable case law in respect of the equitable provisions of R. 4:50-1(f). Id. at *5.
James also argued that the trial court did not consider the facts in his favor which is the requisite summary judgment standard, and the appellate court agreed as the record was clear that the court weighed the facts in favor of the defendant. Id. at *6.
The appellate court also stated that “incapacity should not have been determined solely based on the complaints and motions filed” and that plaintiff was entitled to discovery on the issue. Id. at *7.
As to Mary’s appeal, the appellate court also reversed the summary judgment against her. Mary argued her delay in filing was reasonable because: (1) the delay was only 10 months compared to delays in other cases she cited; (2) she did not have standing to challenge the 2014 will because she was not a beneficiary of that will and not family; (3) she did not know about either will; and (4) the defendant would not be disadvantaged or prejudiced by having to defend Mary’s claim. The court again pointed to R. 4:50-1(f) which states that an extension of time should be granted whenever necessary to achieve equity and justice. Based on these arguments the appellate court determined that the trial court prematurely granted summary judgment against Mary. Id. at *8.
Nancy’s motion to intervene, which had been denied, was also reversed. The trial court determined that her motion to intervene was not timely, but as in the case of the other appeals, the appellate court determined that she did not have actual notice of the 2008 will until James located it and notified her. Id. at *10.