IN THE MATTER ESTATE OF IRENE P. SPIELHOLZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4352-04T24352-04T2

IN THE MATTER OF THE ESTATE

OF IRENE P. SPIELHOLZ, DECEASED

_________________________________________________

 

Argued February 8, 2006 - Decided April 28, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Chancery Division, Union County,

Docket No. N-5659.

Robert M. Jacobs argued the cause for appellant

Elissa Spielholz (Winne, Banta, Hetherington,

Basralian & Kahn, attorneys; Mr. Jacobs, on the

brief).

V. Anthony Digirolamo argued the cause for respondents

Kathi Spielholz, Alan Spielholz and Citicorp Trust

Bank (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys; Mr. Digirolamo, on the

brief).

PER CURIAM

Plaintiff appeals from a judgment of February 17, 2005 dismissing her complaint which sought to set aside the Surrogate's order admitting her mother's last will and testament to probate. The order followed a non-jury trial in which plaintiff appeared pro se.

On this appeal, plaintiff challenges the trial judge's denial of her request to adjourn the trial so she could obtain counsel and seeks reversal based on "the manner in which [the trial] was conducted." Plaintiff further challenges the February 17, 2005 "Order and Judgment Denying Application to Set Aside Surrogates Judg[]ment," which was based on a finding that the executrix, Irene Spielholz, "at the time she made [her] [w]ill was of sound mind and that said [w]ill was not the product of undue influence, fraud or duress." We affirm the judgment.

I.

Decedent was admitted to Overlook Hospital with terminal cancer on November 2, 2002, and executed her revised last will and testament on December 6, 2002 to exclude plaintiff, her eldest daughter. She had previously provided for an equal division of her residuary estate among her three children, plaintiff, Elissa and defendants, Kathi and Alan. The new will expressly provided, in relevant part:

ARTICLE V - DISINHERITANCE

I declare that, for reasons best known to me, I specifically, intentionally, and with full knowledge omit and do not provide for my daughter, ELISSA SPIELHOLZ, under this my last Will and Testament.

Irene died on January 12, 2003 at the age of eighty-two.

The entire estate was left to plaintiff's siblings, Kathi and Alan.

The following evidence was presented at the trial. When decedent's husband became ill prior to his death in 1997, decedent "wanted to take control of all accounts in the household" and called her husband's financial advisor, Henry Sobotka, at Smith Barney. Thereafter, they spoke "two or three times a week." Following her husband's death, the Spielholz accountant, Mark Sanderson, recommended that decedent retain estate planning attorney, Pamela Polifron, to work with Sobotka and Sanderson with regard to her estate, to maximize tax savings and "redo her estate planning documents." Polifron was retained in 1998.

The decedent established Irene's Limited LLC, a family limited liability corporation for the benefit of her three children. During the decedent's initial meeting with Polifron, she expressed that she wanted all of her children treated equally in her will, even though she had "some concerns" about their ability to "get[] along in an amicable manner." The fiduciaries were advised of family relationships by decedent.

After their father's death, Kathi began visiting her mother on a daily basis and eventually moved in with the decedent at her request in 1999. During this time, plaintiff's turbulent relationship with her mother and siblings intensified. Plaintiff continually harassed her mother and called her several times per day. Plaintiff made threats to her mother to have her committed to a psychiatric hospital, threatened to have Kathi's medical license revoked, and threatened to call DYFS on Alan to remove his children from the home. Plaintiff also "threaten[ed]" Polifron that she would be reported to the Ethics Committee and wanted her mother to fire Polifron, Sanderson and Sobotka.

Between August 2000 and June 2001, plaintiff began writing letters to Polifron, stating that decedent wanted to change her will to leave plaintiff a larger share. The letters were in plaintiff's handwriting but signed by decedent. One such letter requested that Polifron change the decedent's will to put the house and all its contents in plaintiff's name alone. Another letter asked Polifron to change decedent's will to take $500,000 out of Kathi's bequest and add it to plaintiff's bequest. After the letters were written, decedent told Polifron that plaintiff had harassed her into signing the letters, and they did not reflect her wishes. She also complained to Polifron about plaintiff, stating on one occasion "that she takes all the joy away from me," and on another that "Elissa has been killing her" and "continues to harass her."

Decedent had a stroke in April 2001 and her health declined thereafter. She was eventually diagnosed with cancer and admitted to Overlook Hospital in November 2002. Plaintiff's harassment of her family continued during this time, and eventually decedent told a hospital social worker "I don't want her coming here." Kathi, thereafter, obtained a restraining order against plaintiff. Decedent had spoken to Sobotka "on more than one occasion" about "disinheriting" plaintiff both before and after she was admitted to Overlook Hospital.

In early December 2002, while decedent was in the hospital, she called Sobotka and told him that she wanted to change her will, and asked him to contact Polifron to "get in touch with [her] and make the necessary arrangements." After he called Polifron, on December 4, 2002, Polifron called decedent and was advised that decedent "no longer want[ed] to provide" for plaintiff. Polifron's memo to her file indicates that decedent directed that because plaintiff was "trying to manipulate the [w]ill" she is "not to get a dime." According to Polifron, decedent "was extremely alert and competent" during their conversations.

The following day, December 5, 2002, Polifron drafted a new will. On December 6, 2002, Polifron and Sobotka visited the decedent in the hospital. The decedent was informed of the changes, assented to them, and signed the will and a document appointing a predecessor of Citicorp as executor and trustee. Two of decedent's treating physicians certified that the decedent was mentally competent at the time. According to Polifron's memo to her file:

I went to the hospital to visit Irene. Henry Sobotka was there already. She had wanted him to be there with me.

Irene looked well and was sitting up in her bed and was alert. She asked to see some pictures of the baby. We made small talk for a while about the baby, the weather, and she kept saying how wonderful the staff at the hospital were treating her.

I asked her some preliminary questions, her name, what day it was, who the current president of the United States is. She answered all the questions correctly.

I gave her a copy of the [w]ill so she could read along with me. Before reading through the [w]ill, I asked her if Henry should stay. Would she be more comfortable if he left. She said she wanted Henry in the room.

We went through the [w]ill. She indicated to me that her intentions were to leave her estate to only Alan and Kath[i] and that not a dime to Elissa.

After she agreed that the [w]ill represented her wishes, I had two independent witnesses come into the room. Irene said that she never saw them before and the two women, volunteers in the hospital, said that they never had met Irene before today.

Irene and these two women spoke for a few minutes about what the women did in the hospital as volunteers.

We then executed the [w]ill. Irene signed before the two witnesses.

I then had Irene review the memorandum regarding the appointment of Citibank Trust and she signed off on this memo as she had in the past.

I also asked her to sign a retainer with regard to the execution of the [w]ill.

II.

There was no abuse of discretion in denying plaintiff's requests for an adjournment given the history of withdrawal, discharge and substitution of counsel. After her final lawyer withdrew from the case, the court gave plaintiff ample time to retain new counsel and continually warned her that she would have to proceed pro se if she could not obtain representation.

III.

There is no basis on which to disturb the judge's finding that the will was executed without duress or undue influence by decedent while of sound mind and capacity.

In concluding his opinion, the judge stated:

When I look at the burdens of proof, it's clear that under the law the plaintiff has the initial burden of proof to show some undue influence. And your recitation of the definition of undue influence from [Haynes v. First Nat'l State Bank, 87 N.J. 163 (1981)] is absolutely correct. But I don't find in any way, shape or form that there was any overbearing, undue influence persuasions. There's no -- nothing that gives any indication that either Alan or Kath[i] were constantly or at any time, saying cut her out, cut her out. There's nothing there like that.

Even if I . . . assume there was some confidential relationship and a suspicious circumstance[] for purposes of shifting the burden, you have to go back and look at the confidential relationship. The only confidential relationship was that Kathy was a caregiver and spending a lot of time with [decedent] . . . .

. . . .

Even if I found a confidential relationship, however, what are the suspicious circumstances? The suspicious circumstances are that she was, the plaintiff, excluded and that the will cuts out a family member, but look at the proofs that overcome that.

Well, she was excluded because she had a restraining order. And she had a social worker tell her she didn't want it. Whatever suspicion is dispelled simply by that testimony, which is unrefuted testimony. And as far as who gets things under the will, we go back years to [decedent] saying, I'm going to cut you out, I'm going to cut you out, keep it up.

[Decedent] finally gets in the hospital, and she calls her attorney with no connections and she cuts [plaintiff] out. I don't find in any way, shape or form any undue influence. And we can debate theoretically what is the standard of proof. It doesn't matter in this case because the proof submitted by the defendants clearly, convincingly, overwhelmingly demonstrate to this court that there was no undue influence.

The conclusion I reach is a simple one. The plaintiff's envy, jealousy, greed and obsession with controlling her mother and her money to the exclusion of all others drove her mother to put her out of the will. What is said is that her mother in the hospital dying finally at the end of her life finds an oasis, a refuge, of peace. And it was her act, at that time, to render what she found to be the just rewards.

We could all argue whether it was just or not, whether it was wise or not. That's not the test. The test is what was her intention. Her intention was clear, executed, and as far as this court is concerned, it will stand.

So, the proofs clearly and convincingly demonstrate no undue influence. Judg[]ment will be entered for the defendants.

"In any attack upon the validity of a will, it is generally presumed that 'the testator was of sound mind and competent when he executed the will.'" Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981) (quoting Gellert v. Livingston, 5 N.J. 65, 71 (1950)). However, "[i]f a will is tainted by 'undue influence,' it may be overturned." Id. at 176. When an allegation of undue influence is made, the burden of proof lies with the person contesting the will "unless the will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present which require explanation." Id. at 176 (quoting In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955)). In that situation, "a presumption of undue influence" is raised and "the burden of proof is shifted to the proponent" of the will. Ibid.

"[O]nce a presumption of undue influence has been established," the proponent of the will must "under normal circumstances" rebut the presumption by a preponderance of the evidence. Id. at 177-78. However, there are situations which call for the "clear and convincing" burden of proof "where 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." Id. at 182.

Here, the trial judge did not determine whether the defendants had to rebut the attack on the validity of the will by a preponderance of the evidence or by clear and convincing evidence because he determined that "the defendants clearly, convincingly, overwhelmingly demonstrate[d] . . . that there was no undue influence" at all. We cannot disagree. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

While Ms. Polifron "did an accommodation service for Kath[i]" by representing her on one occasion in the closing on her condo, decedent at one point also took plaintiff to meet Polifron to represent her with respect to a business plaintiff was starting. Thus, as Judge Lyons found, "the attorney was first and foremost . . . [the decedent's] attorney." Cf. Haynes, supra, 87 N.J. at 170, 184 (finding "irreconcilable conflict" where the scrivener of decedent's will was initially the beneficiary's attorney and had provided "substantial legal advice" on her behalf); Pascale v. Pascale, 113 N.J. 20, 35 (1988) (finding conflict of interest where attorney "simultaneously" represented both father and son in same transaction). Polifron was introduced to decedent by the accountant who had worked for decedent and her husband, and decedent maintained a relationship with counsel directly and through her broker-financial advisor.

The record demonstrates that neither Sobotka nor Polifron consulted any of decedent's children about the revised will, and that there was a basis for decedent's decision to disinherit the plaintiff.

Significantly, an independent witness, the decedent's social worker at Overlook Hospital, Gloria Penn, heard about plaintiff's outbursts and behavior during one of plaintiff's visits. On that occasion, the decedent, who was clearly competent, "alert and oriented" told Penn that she did not want to see the plaintiff because she made her so "upset." Thereafter, decedent obtained a restraining order against plaintiff to stop her from visiting and calling the hospital. Ms. Penn testified that the decedent was "absolutely not" influenced by anyone in making her decision to obtain the order and have no contact with her daughter.

There is no basis to disturb the findings and conclusions of Judge Lyons. See Rova Farms Resort, supra, 65 N.J. at 483-84; R. 2:11-3(e)(1)(A), (E).

 
The judgment is affirmed.

In fact, decedent tape recorded telephone conversations with plaintiff to document the harassment and abuse. These tapes were introduced at trial.

Sobotka acknowledged that Kathi and Alan were his clients and that he had a "confidential" relationship with them and their mother, but he had no "personal gain" as a result of plaintiff being "cut out of [her] mother's will."

On the first day of trial, prospective counsel called the judge and said he would not represent plaintiff. On the second day of trial, the judge indicated he would allow new counsel to enter the case if he or she entered an appearance, but that did not occur.

(continued)

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A-4352-04T2

April 28, 2006