IN THE MATTER OF THE ESTATE OF LOLA IMOGENE GOODE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE ESTATE

OF LOLA IMOGENE GOODE, Deceased.

_______________________________________

November 17, 2014

Argued November 14, 2013 Decided

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from Superior Court of New Jersey,

Chancery Division, Probate Part, Passaic County,

Docket No. P-20186.

Ronald M. Fraioli argued the cause for appellant

Johnett Ruiz (Fraioli & Moore, attorneys;

Mr. Fraioli, on the brief).

Anthony Benevento argued the cause for

respondents Jacqueline Ebanks, Roderick Goode and

Winston Goode (Fontanella Benevento Galluccio &

Smith, attorneys; Mr. Benevento, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

On March 22, 2011, Lola Goode died in the City of Paterson, purportedly intestate. She was seventy-nine years old at the time. Decedent was survived by her six adult children, Johnett Ruiz1 and Sylvester Darnell (father unknown), and Winston Goode, Roderick Goode, Ardyth Goode, and Jacqueline Ebanks, born of the union between decedent and her husband, Windsor Goode, who predeceased his wife in 1996. Johnett Ruiz applied for Letters of Administration in the Office of the Passaic County Surrogate, and was appointed administrator of her late mother's estate.

The Goode children filed caveats to Johnett Ruiz's appointment as administrator of their mother's estate. At the conclusion of this litigation, the Chancery Division, Probate Part appointed Johnett Ruiz and Winston Goode co-administrators of their mother's estate. Several months thereafter, Winston Goode filed a complaint to admit to probate an after-discovered will purportedly executed by Lola Goode. The will appeared to have been originally drafted in 1974.

The matter was tried over a number of non-sequential days commencing on July 9, 2012, and ending on November 5, 2012. Based on the testimony provided at trial, General Equity Judge Margaret Mary McVeigh admitted the will to probate, appointed Winston Goode as sole executor of the estate, and ordered Ardyth Goode to transfer title to the estate of a property owned by decedent at the time of her death. Judge McVeigh thereafter issued an amended order supported by a memorandum of opinion in which she explained the legal and factual bases of her ruling.

Johnett Ruiz now appeals from this order arguing Judge McVeigh committed multiple legal errors warranting the reversal of her order, including allowing speculative evidence as a basis for admitting the after-discovered will into probate, a conflict of interest by the attorney who drafted the will, misapplication of our holding in In re Estate of Ehrlich, 427 N.J. Super. 64 (App. Div.), certif. denied, 213 N.J. 46 (2013), and failure to apply the doctrines of judicial estoppel, waiver, and laches to bar the admission of the will to probate.

We review the factual findings made by a trial judge to determine whether they are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal citation omitted). However, our scope of review of a judgment entered in a non-jury case is more deferential. Factual findings made by a judge in a bench trial "should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Id. at 483-84. Because our role as appellate judges requires us to rely on the record developed before the trial judge, our assessment of testimonial evidence is always removed from this unique experience.

Factual findings that "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case" enjoy an extra measure of deference. State v. Johnson, 42 N.J. 146, 161 (1964). We are thus enjoined to "exercise . . . original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms, supra, 65 N.J. at 484.

After carefully reviewing the record developed by the parties before Judge McVeigh, and mindful of these standards of review, we reject appellant's arguments and affirm substantially for the reasons expressed by Judge McVeigh in her memorandum of opinion dated January 2, 2013. We will also dispense with restating here the lengthy, and at times contentious testimonial evidence presented by the parties at trial, and instead incorporate by reference Judge McVeigh's detailed exposition of her factual findings, as reflected in her memorandum of opinion.

A trial court's principal duty in a contested probate matter is "to ascertain and give effect to the probable intention of the testator." Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564 (1962) (internal citations and quotation marks omitted). Judge McVeigh accepted as credible Jacqueline Ebanks's testimony describing the circumstances that led her to locate decedent's 1974 will. Judge McVeigh also found "that the length of time between death and the location of the will was not excessive and is excusable based upon the circumstances." We discern no legal basis to disturb this finding.

Distinguishing the circumstances showing undue influence relied on by the Court in Haynes v. First National State Bank of New Jersey, 87 N.J. 163 (1981), Judge McVeigh specifically found "no indication that there was any attempt to override or success in overcoming Lola Goode's free will in the execution of her will and the leaving of her Estate to her four children of her marriage to Windsor Goode, and not include her two older children."

With respect to appellant's challenges to whether the will was actually executed by decedent, Judge McVeigh accepted as credible the testimony of Patricia Cumberbatch, who was employed by William Cutler, the attorney who drafted the will in 1974, as his "secretary/manager." Judge McVeigh characterized Cumberbatch as "a well accomplished administrative assistant to a law office." Cumberbatch personally witnessed decedent's execution of the will and even attested that the paper of the document before the court

was used in their office during that period of time. She recognized her signature on the will, and if her signature was on the will it was there be because she observed the will being executed. She saw nothing in the documentation nor could conjure anything from her memory that would indicate that this was not a truly and freely executed will.

Specifically citing In re Estate of Ehrlich, supra, 427 N.J. Super. at 75, Judge McVeigh concluded Cumberbatch's testimony was sufficient to establish that the will was properly executed. See also N.J.S.A. 3B:3-2(a).

Appellant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We again incorporate by reference Judge McVeigh's analysis and factual findings.

Affirmed.

1 Appellant identified herself as "Johnett Ruiz" in the Notice of Appeal and as "Johnet Ruiz" in her Verified Complaint and various other documents. The transcript of the trial held before the General Equity Judge refers to her as "Johnett Ruiz." Consistent with the Notice of Appeal, we will refer to her in this opinion as "Johnett Ruiz."