IN THE MATTER OF THE ESTATE OF EDWARD J. MILTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2425-11T4

IN THE MATTER OF THE ESTATE

OF EDWARD J. MILTON, Deceased.

_____________________________________________

April 5, 2013

Submitted October 2, 2012 - Decided

Before Judges Waugh and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-170-11.

Susan M. Stark, appellant pro se.

Respondents, Eileen Fogel, Noreen Benjamin, and Frank Milton, have not filed a brief.

PER CURIAM

On June 29, 2010, the Surrogate of Monmouth County admitted the last will and testament of Edward J. Milton to probate. Susan Stark, a daughter of Milton, filed a complaint claiming tortious interference with her right to receive inheritance and requesting an order to set aside the will.1 Susan appeals from the December 9, 2011 order of the Chancery Division dismissing her complaint.2

On appeal, Susan argues that, because the decedent was under undue influence when he signed his will, the motion judge erred in upholding the will and dismissing her complaint.

I.

The record on appeal reveals that Milton died June 9, 2010, at age seventy-nine, leaving five surviving children: Eileen Fogel, Noreen Benjamin, Michael Milton, Frank Milton, and Susan. Milton executed wills in 1995, 1998, and 2009. The wills were prepared by Milton's attorney, William J. Mehr.

The 1998 and 2009 wills divided Milton's residuary estate into four equal parts. The 1998 will left one part each to Eileen, Noreen, Frank, and Susan. Milton specifically disinherited Michael. The 2009 will made three changes. Michael's two children each received $5000; the part of the residuary estate left to Susan in the 1998 will was instead left to her three adult children; and Eileen was substituted for Susan as second alternate executor.

A brief discussion of family history is helpful to put Milton's testamentary intent in context. In 1994, Frank, his wife Maureen, and son Ryan, moved in with Milton and his wife at their home in Hazlet. In 2002, Frank and Maureen purchased the home from Milton, Mrs. Milton having previously died.

In July 2009, Milton changed his will unbeknownst to his children. In Frank's certification opposing the relief requested by Susan, he stated that Susan had recently remarried her former husband, Robert Stark, some twenty years after their divorce. Frank stated that, "I am certain that [Milton] gave Susan's portion of his estate to her children precisely to keep it away from Susan and Mr. Stark."

In support of her application challenging the 2009 will, Susan provided the court with an affidavit of Thomas E. Wilson, a New Jersey attorney. In his affidavit, Wilson stated that he had represented Milton in different matters over the years. He also stated that he had represented Susan in many matters and "in fact, [has] been a friend of hers for many years." Additionally, he acknowledged "[he has] . . . represented many family members associated with this matter in different diverse matters over a span of many years."

Wilson stated that on August 1, 2009, at 10:30 p.m., he had a conversation with Milton. That conversation took place at Milton's granddaughter's wedding reception. Earlier that day, Wilson had learned that Susan remarried her former husband. Wilson had represented Susan in the original divorce matter and the resultant litigation involving Mr. Stark's failure to pay support for the children born of their marriage.

Wilson broached the subject of Susan's remarriage with Milton. Wilson asserts that Milton stated that his family, namely his other children, disapproved of the marriage and were totally against it. Wilson maintains that Milton said "that he was not thrilled with the idea but if his daughter was happy, the[n] he was happy." Wilson further asserts that Milton told him that his children insisted that he change his will to remove Susan as a beneficiary so that Susan's husband would not get his money in the event of another divorce.

In response to Wilson's question of whether that was in fact his wish, Milton replied, "not particularly but what choice [do I] have?" Wilson then told Milton that he did not have to change his will, but Milton replied that he lived with his children and he did not want any more family disharmony. In response to a question from Wilson as to who drafted the will, Milton stated that it was an attorney suggested by one of his children.

In his affidavit Wilson asserted, "I then explained to Mr. Milton that New Jersey matrimonial law specifically states that if a parent leaves a legacy to a child under a Will at the time of divorce, that legacy is not subject to any equitable distribution of property claims by the other spouse." According to Wilson, Milton said that "made a world of difference to him" and that if this had been known to him "he would not have changed his Will." Milton then told Wilson that "it was his absolute intention to change his Will back to the way it was especially so as he told me that he had an agreement with his now deceased wife, never to change his Will." Wilson concluded his affidavit by stating, "It was my distinct impression from this conversation that Mr. Milton changed his Will not on his own accord and that it was his specific intention to change his Will back to its original form as to contents."3

In addressing Count One of the complaint, the motion judge citing Haynes v. First Nat'l State Bank of New Jersey, 87 N.J. 163, 176 (1981), noted that the burden of proving undue influence would shift to the will's proponent if Susan could prove that there was a confidential relationship between defendants and decedent, and suspicious circumstances surrounding decedent's disposition of his estate existed.

In her oral opinion, the motion judge determined: "I find that in this case there is no showing of a confidential relationship, with most if not all of the -- with the defendants." The judge noted that Susan had not alleged that a confidential relationship existed. Further, the judge determined that "even if a confidential relationship exists, there must be suspicious circumstances. And I find no suspicious circumstances present in this case." The judge recognized the uncontroverted fact that Milton's change in testamentary disposition did not benefit any of Susan's siblings.

The judge then addressed the allegations of intentional and fraudulent acts set forth in Count Two of the complaint. The judge set forth the five elements of common law fraud, citing Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). The judge determined that allegations of common law fraud must be pled with particularity, citing Rule 4:5-8(a). She further noted that conclusory statements are insufficient to carry the burden, citing Rego Industries, Inc. v. American Modern Metals Corp., 91 N.J. Super. 447, 456 (App. Div. 1966).

The judge held that Susan failed to plead fraud with particularity, because she made only conclusory statements, and failed to meet her initial burden, and, therefore, her pleading was insufficient. Further, the judge noted that Susan made assertions of "coercion, duress, and malicious acts. The plaintiff has provided no factual basis for those allegations and nothing from the facts support that position. Those claims are without merit." Consequently, the judge found no undue influence. The judge then dismissed that count of the complaint and granted summary judgment to defendants.4 This appeal followed.

II.

Certain principles guide our consideration of the issues raised on appeal.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo, Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

The motion judge must determine whether there are any genuine factual disputes, but, if they exist, the motion judge cannot resolve those disputes on the papers. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). When genuine issues of material fact are in dispute, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540. To grant the motion, the court must find that the evidence in the record "'is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

"If a will is tainted by 'undue influence,' it may be overturned." Haynes, supra, 87 N.J. at 176. "Undue influence" has been defined as "'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Ibid. (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). When the issue of undue influence is raised,

the burden of proving undue influence lies upon the contestant 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. In such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent.

[Ibid. (quoting In re Will of Rittenhouse, 19 N.J. 376, 378-79 (1955)).]

The first element necessary to raise a presumption of undue influence is a "confidential relationship." Ibid. Such a relationship arises "where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists." Ibid. (quoting In re Hopper, 9 N.J. 280, 282 (1952)). "The nature of a confidential relationship is difficult to define, but encompasses all relationships 'whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.'" Pascale v. Pascale, 113 N.J. 20, 34 (1988) (quoting In re Estate of Fulper, 99 N.J. Eq. 293, 314 (Prerog. Ct. 1926)).

[A confidential] relationship includes not only all cases of technical, legal, fiduciary relationship, such as guardian and ward, principal and agent, trustee and cestui que trust, but also all cases where trust and confidence actually exist. It comprehends . . . all cases where the relations between the [contracting] parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from over-mastering influence; or on the other from weakness, dependence or trust justifiably reposed, unfair advantage is rendered probable.

[Ibid. (internal quotations omitted).]

Factors to be considered in determining whether a confidential relationship is present include:

[W]hether trust and confidence between the parties actually exist, whether they are dealing on terms of equality, whether one side has superior knowledge of the details and effect of a proposed transaction based on a fiduciary relationship, whether one side has exerted over-mastering influence over the other or whether one side is weak or dependent.

[Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402 (App. Div. 2007).]

However, a confidential relationship "does not exist 'where the parties deal on terms of equality,' even though they are, at the same time, family members and business associates." Ibid. (quoting In re Codicil of Stroming, 12 N.J. Super. 217, 224 (App. Div.), certif. denied, 8 N.J. 319 (1951)). In order to find a confidential relationship, "the circumstances [must] make it certain that the parties do not deal on equal terms." Stroming, supra, 12 N.J. Super. at 224.

The second element necessary to create a presumption of "undue influence" is the presence of "suspicious circumstances." Haynes, supra, 87 N.J. at 176. While the contestant must prove suspicious circumstances, "[s]uch circumstances need be no more than 'slight.'" Ibid. (internal citation omitted).

We see no reason to disturb the motion judge's conclusion that Susan did not present sufficient facts to shift the burden of persuasion to the proponent of the 2009 will, particularly given the fact that none of Susan's siblings benefited by the change in beneficiaries from Susan to her children. The judge's finding that "no suspicious circumstances [are] present in this case" is amply supported by this salient fact.

However, the facts contained in Wilson's affidavit, if admissible and credited by the trial judge, might result in a finding that Milton's "free agency" was destroyed or that he was "not following the dictates of his own mind and will" but accepted "the domination and influence of another," depending upon all of the other circumstances developed during the trial, although they need not do so. As the Supreme Court held in In re Will of Blake, 21 N.J. 50, 56 (1956), "influence is not undue . . . unless it constitutes moral or physical coercion destructive of free agency. Even persuasion . . . is not undue influence . . . if freedom of will remains intact." It is a highly fact sensitive issue. We hold only that there are sufficient facts to warrant a trial. We reverse the grant of summary judgment on Count One and remand to the trial judge for further proceedings consistent with our opinion.

Finally, we find Susan's assertion that the motion judge erred in dismissing her allegations of "coercion, duress, and malicious acts," to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add the following comment. Our Supreme Court has stated:

In Probate Part matters, a tort-based claim, at least in theory, can only arise if someone has acted so as to deplete the estate of its assets or reduce the assets of the estate in some fashion. Even then, the circumstances in which a tort-based theory coexists with a Probate Part proceeding are relatively unusual.

[Stockdale, supra, 196 N.J. at 304.]

This is not such an unusual matter. In any event, as the Court held in In re Niles, 176 N.J. 282, 299 (2003), undue influence is a form of fraud. Consequently, we affirm the dismissal of Count Two because it does not state a claim in addition to that pled in Count One.

Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.

1 After a will has "been admitted to probate, it may be challenged by the timely filing of a complaint in the Probate Part." In re Estate of Stockdale, 196 N.J. 275, 302 (2008) (citing R. 4:85-1).

2 For the sake of convenience, because some of the parties share the same last name, we refer to them by their first names.

3 In this appeal, we need not address the following issues: whether it was appropriate for Wilson to provide legal advice to Milton when he knew that Milton was represented in his testamentary legal affairs by another attorney; Wilson's conflict, as Susan's former attorney, in advising Milton to change his will to include Susan as a beneficiary; and whether the advice given by Wilson to Milton, "that legacy is not subject to any equitable distribution of property claims by the other spouse" is, under all circumstances, sound advice. Further, there are no facts in the record before us to indicate whether Milton subsequently met with his own attorney or the substance of that meeting if it occurred.

4 Defendants voluntarily dismissed their counterclaim.