IN THE MATTER ESTATE OF MILDRED L. FOX

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0325-04T50325-04T5

IN THE MATTER OF THE ESTATE

OF MILDRED L. FOX, DECEASED

_______________________________

 

Argued November 9, 2005 - Decided

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. 83721.

John F. Palladino argued the cause for appellant Mildred Totoro Fox (Hankin, Sandman, Bradley & Palladino, attorneys; Mr. Palladino and Jenna M. Cook, on the brief).

Louis L. D'Arminio argued the cause for respondent Thomas Fox (Price, Meese, Shulman & D'Arminio, attorneys; Mr. D'Arminio, Maria Cristiano Anderson and Jennifer Knarich, on the brief).

Daniel J. Gallagher argued the cause for respondent Donald Kelly (Miller and Gallagher, attorneys; Mr. Gallagher, on the brief).

Respondents Benjamin Fox and Administrator of the Estate of Mildred Fox did not file a brief.

PER CURIAM

This is an appeal of a final judgment of the Chancery Division, Probate Part, which dismissed a complaint by Benjamin Fox seeking to probate the alleged will of his mother, Mildred Fox, on the ground that the will was the product of undue influence.

Mildred Fox owned a hotel in Atlantic City. At some point in 1987, Benjamin, who lived in New York, began coming to Atlantic City on weekends to assist her mother in managing the hotel. Benjamin also assisted his mother in various other financial matters: he paid the bills for operation of the hotel; he resolved her federal tax liability with the Internal Revenue Service; he negotiated a lease on a parking lot she owned; he communicated with Tropicana Hotel regarding a proposed sale of her hotel; and he helped her invest in commercial paper.

During the same period Benjamin was assisting his mother with management of the hotel and financial matters, the two of them met with Dan Bell, an Atlantic City attorney who had drafted two prior wills for Mildred, regarding a sale or lease of property she owned. During this meeting, Mr. Bell asked the decedent whether she had recently updated her will, and suggested she do so.

However, Mildred did not ask Bell to draft a new will. Instead, when she was in New York, Benjamin brought her to Robert O'Neill, a New York lawyer who had previously represented Benjamin in connection with approximately ten different matters. According to O'Neill, Benjamin arranged the meeting with Mildred, and O'Neill did not speak with her beforehand. O'Neill also stated that when he found out Mildred did not own any property in New York, he told Benjamin she should be dealing with a New Jersey attorney. However, Benjamin asked O'Neill to see his mother anyway, and he agreed. When Benjamin brought Mildred to O'Neill's office in late 1987, she told O'Neill that she wanted to exclude one of her four children, Thomas, from her will. She also indicated that if one or more of her children predeceased her, she wanted that child's share to go to her surviving children rather than to her grandchildren. When O'Neill asked Mildred about this provision, she stated: "I'll take care of my children, and my children can take care of their children." O'Neill prepared a rudimentary form of will for Mildred, which he described as a "blueprint" of a will, and gave the document to her before she left the office. However, O'Neill advised Mildred to see a New Jersey attorney to prepare her actual will. Mildred then asked O'Neill whether the document he had prepared "would . . . still be a good will." He responded that it would "need an appropriate attestation clause" and would need to be witnessed.

The draft will that O'Neill prepared for Mildred left her entire estate to Benjamin and her two daughters, Thelma and Mildred Totoro, excluding Thomas as a beneficiary, and providing that the share of any child who predeceased her would go to her surviving children. The will also named Benjamin as the executor of her estate.

On January 14, 1988, Mildred executed the draft will that O'Neill had given her the month before. According to O'Neill, the first two pages of that will appear to be the document he had prepared, but the third page, containing the attestation clause and signatures of the testator, witnesses and notary, was not prepared by him. After its execution, Mildred gave the original of the will to Benjamin even though she had safe deposit box in the hotel in which she kept important papers.

Mildred died on March 5, 2002. Thelma predeceased Mildred, and was survived by her son, Donald Kelly.

Shortly after her death, Benjamin offered the will Mildred had executed in 1988 for probate. The will, by its terms, disinherited Thomas, and left no provision for Donald by virtue of Thelma predeceasing Mildred.

Donald Kelly filed a caveat against probate of the will with the surrogate, and Benjamin subsequently filed a complaint seeking to admit the will to probate. Donald filed an answer that contended that the decedent lacked the mental capacity in 1988 to make a will and that she was induced to execute the purported will through Benjamin's undue influence.

The case was tried before Judge Seltzer. Benjamin, Thomas, Mildred Totoro, Donald Kelly and Joseph Breeden, an employee of the hotel around the time of the will's execution, testified, and O'Neill's deposition was admitted into evidence.

Judge Seltzer dismissed the claim of lack of testamentary capacity during trial. However, Judge Seltzer concluded in a letter opinion issued after trial that the will was the product of undue influence that Benjamin exerted upon his mother. Therefore, he denied probate. Because none of the decedent's prior wills could be located, the result of the finding of undue influence in the execution of the 1988 will is that Mildred's estate will pass by the laws of intestacy.

In concluding that the will was the product of undue influence, Judge Seltzer first found that a confidential relationship existed between Benjamin and his mother based on the fact that Benjamin:

(a) assisted his mother in the operation of her hotel (spending, as he put it "a lot of time helping at Fox Manor in 1987 and 1998); (b) behaved, in the words of Joseph Bree[de]n, an independent witness who had been employed at Ms. Fox's hotel "as if he were in charge"; (c) rendered advice at the request of Ms. Fox (even to the extent, on Mr. Fox' testimony, of asking for a recommendation of an attorney); (d) acted on behalf of his mother in arranging a lease of a portion of real estate owned by his mother; (e) was involved in discussions of a possible sale of that property; and (f) assisted his mother in the investment of funds relating to possible adverse income tax consequences.

Judge Seltzer also found that the circumstances of the preparation of the will were suspicious:

Ms. Fox had retained the services of a local attorney for the preparation of two prior wills and . . . retained her own attorneys when she needed legal assistance. Nevertheless, . . . at some time in late 1987, Ms. Fox met with a New York attorney who drafted a document that she signed on January 14, 1988.

Ms. Fox met with that attorney, Robert O'Neill, at the suggestion of Mr. Benjamin Fox after Ms. Fox's long time attorney suggested that she review the terms of her existing will. Whether Ms. Fox asked for the name of an attorney (which I take to be unlikely given the relationship she already had with a local firm) or whether Mr. Fox broached the idea, I am well satisfied that Ms. Fox had never met Mr. O'Neill before the meeting.

I am also satisfied that Mr. O'Neill had represented Mr. Fox on several occasions before he, O'Neill, met with Ms. Fox and that his loyalty to Ms. Fox was not undivided. I reach that conclusion because, although Mr. O'Neill would have nothing to do with the execution of the will, he nevertheless prepared it. I infer that had Ms. Fox simply appeared at his office with the request that he prepare a will for her, he would simply have told her to see an attorney licensed in New Jersey. His failure to turn her away . . . suggests that he was trying to accommodate his responsibility both to Ms. Fox and Mr. Fox. This is confirmed by the fact that he spoke with Ben Fox, revealing the contents of the document, several days after the meeting with Ms. Fox.

I am also satisfied as Mr. Fox testified that Mr. Fox and at least one of his sisters saw the document before it was executed and discussed the matter with Ms. Fox, ultimately removing the document from her possession. I also infer from the failure to execute the document in New York, the discussions with family members about it, and the use of friends as witnesses that no New Jersey attorney was involved in the execution of the will. Moreover, I am satisfied from the testimony of Millie Fox that, although Ms. Mildred Fox was not declared mentally incapacitated until some six years after the execution of the will, her mental abilities had been declining at about the time the will was executed. This assertion is supported by both the testimony of an obvious failure of Ms. Fox to understand the import of the document that was presented to her. No one disputes the assertion that Ms. Fox did not provide for her grandchildren because she intended that "I'll take care of my children and they'll take care of their children." Clearly that is not what the document proposed.

Judge Seltzer further concluded that the presumption of undue influence raised by Benjamin's confidential relationship with his mother and the suspicious circumstances surrounding the execution of her will could be overcome only by clear and convincing evidence:

Generally "[I]n this jurisdiction, once a presumption of undue influence has been established the burden of proof shifts to the proponent of the will, who must, under normal circumstances, overcome that presumption by a preponderance of the evidence." There are however "situations calling for a stronger presumption of undue influence and a commensurately heavier burden of proof to rebut the presumption." Those situations include one in which "a presumption of undue influence has arisen because the testator's attorney has placed himself in a conflict of interest and professional loyalty between the testator and the beneficiary.

Although the situation here is not as clear as in some of the reported decisions, it appears, for the reasons I have already noted, that Mr. O'Neill was in, at the very least, an awkward situation. He had been asked by a client with whom he had a history of representation, to deal with his mother respecting the preparation of a will. Mr. O'Neill was uncomfortable with this assignment but, apparently to accommodate Mr. Fox, agreed to do so. Rather than refuse Ms. Fox's request to draft a will, something it is clear he would have done, had there been no prior relationship with the referring source (Mr. Fox) he took a middle ground by preparing the document but refusing to participate in its execution. That conflict justifies the imposition of a high level of proof if the resulting presumption of undue influence is to be rebutted.

Finally, Judge Seltzer concluded that the proponents of the will had failed to present the clear and convincing evidence required to overcome the presumption of undue influence:

The evidence that suggests Ms. Fox's actions reflected her own desires is pretty much limited to the testimony of Mr. Ben Fox that his mother was strong willed, the testimony of Mr. Breeden (the ex-employee of the hotel) that Ms. Fox was "feisty and not exactly manipulable"; and the testimony of Mr. O'Neill that Ms. Fox was strong minded and seemed to know what she wanted. I am not particularly impressed by Mr. Fox's testimony. He was belligerent and evasive throughout that testimony and I simply do not credit it. I accept the testimony of Mr. Breeden although I do not give it any substantial weight, given his limited opportunity to know his employer. I accept the testimony of Mr. O'Neill but that acceptance does not answer the question as to whose intentions Ms. Fox was expressing such strong concern - hers or those of her son. Finally, I have a reason proffered for the omission of Thomas Fox - the default of a loan from his mother.

Against that evidence I have the evidence from Mildred Fox, which I accept, that her mother was losing her faculties around the period involved. I have all of the suspicious circumstances described and for which no ready answer has been provided. Moreover, no reason has been given for the omission of bequests to grandchildren if their parents should predecease Ms. Fox. Similarly, the force of any claim that Ms. Fox harbored a grudge against her son Thomas is blunted by her acceptance of his help in the hotel after the will had been executed.

. . . .

Mr. Fox (and his sister Mildred) must do more than to leave me with a belief that it is more likely than not that the will was the product of his mother's free will; he must dispel my doubts and leave me with a clear conviction, without hesitancy, that no undue influence was exerted. The possibility that Benjamin Fox kept after his mother to disinherit the brother who, it seems clear to me, he did not like is a real one. I can absolutely conceive Mr. Fox's efforts to have his mother prepare a will with Mr. Fox's attorney so that his mother's attorneys would not challenge his plan of excluding Thomas.

It takes no stretch of the imagination to believe that Ms. Fox was brought to New York for that sole purpose at a time when she was relying on her son to assist her in her personal and work life. I cannot say that this occurred, but if we are serious about imposing heightened burdens of proof in these situations, that is not sufficient. So long as the concerns are real and not imaginary or unsubstantial (and I do not conceive that they are) the proponents of the will have failed to meet their burden and probate must be denied.

On appeal, Mildred Totoro presents the following arguments:

I. THE TRIAL COURT ERRED IN FINDING A PRESUMPTION OF UNDUE INFLUENCE.

A. THE TRIAL COURT ERRED WHEN IT FOUND A CONFIDENTIAL RELATIONSHIP.

B. THE TRIAL COURT ERRED IN FINDING SUSPICIOUS CIRCUMSTANCES.

C. THE TRIAL COURT ERRED WHEN IT REQUIRED THE PROPONENT TO OVERCOME THE PRESUMPTION OF UNDUE INFLUENCE BY CLEAR AND CONVINCING EVIDENCE.

D. THE TRIAL COURT ERRED IN FINDING THE PRESUMPTION OF UNDUE INFLUENCE HAD NOT BEEN OVERCOME.

We reject these arguments substantially for the reasons set forth in Judge Seltzer's letter opinion. His factual findings are adequately supported by the evidence, R. 2:11-3(e)(1)(A), and his legal conclusions are based on well-established law relating to undue influence in the execution of a will.

 
Mildred Totoro also argues that the trial court erred when it failed to carve out the portion of the will affected by undue influence and admit the rest of the will to probate. See In re Probate of Alleged Will of Landsman, 319 N.J. Super. 252, 267-69 (App. Div.), certif. denied, 161 N.J. 335 (1999). However, she failed to raise this argument before the trial court. We do not ordinarily consider arguments raised for the first time on appeal, particularly where a party's failure to advance an argument before the trial court has deprived other parties of the opportunity to present relevant evidence. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We perceive no reason to depart from this salutary rule of appellate practice in the present case.

Affirmed.

(continued)

(continued)

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A-0325-04T5

November 29, 2005