IN THE MATTER OF THE ESTATE OF SOPHIE G. MAJKA

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5415-04T15415-04T1

IN THE MATTER OF THE ESTATE

OF SOPHIE G. MAJKA, deceased

____________________________________________________

 

Argued September 27, 2006 - Decided

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket Nos. 199637 and 199676.

Alan L. Zegas argued the cause for appel-lants Joseph Majka and Mary Ann Woodward (Mr. Zegas and Daniel M. Rosenberg, on the brief).

Michael F. Lombardi argued the cause for respondent Stephen R. Majka (Lombardi & Lombardi, attorneys; Mr. Lombardi, on the brief).

PER CURIAM

The will proponents in this matter appeal a judgment based upon a finding that they failed to demonstrate by clear and convincing evidence that the will in question was not the product of undue influence. We affirm substantially for the reasons set forth by the trial judge.

I

Judge Robert Longhi, sitting without a jury, presided over the trial of this will contest. At its conclusion, he rendered findings of fact which may be summarized as follows.

When Sophie G. Majka executed a will on August 29, 1994, she was a widow with three adult children: twins Joseph Majka and Mary Ann Woodward, and a younger son, Stephen Majka. The judge found that for many years there was "bad blood" between the twins, on the one hand, and Stephen, on the other, the level of which was only increased by the circumstances surrounding Sophie's execution of the 2002 will in question.

Sophie and her late husband, Walter, had lived in their home in Colonia for many years. Stephen resided there until he moved out in 1960 but returned in 1988 to help care for his ailing father. Since that time Stephen resided in Sophie's home except for a two-year period during which Joseph and his family resided there.

Upon Walter's death, the property upon which the home sat was subdivided into two lots. Sophie retained the home, but transferred the other lot to Joseph and provided him with funds to build a house on the property. She also made large transfers of money to Mary Ann to help her purchase a home in South Carolina. Stephen did not receive any similar large inter vivos transfers from either parent prior to Sophie's death, suggesting a reason for Sophie's disproportionate treatment of her children in her 1994 will, wherein she devised her home to Stephen subject to his payment to Mary Ann of $80,000. The will also included specific distributions of personal property to the three children and declared them the equal beneficiaries of her residuary estate.

Judge Longhi found from the evidence that Sophie had a stroke in either 1999 or 2000 and its severe lingering effects caused her to seek out and become dependent upon the financial and legal advice and assistance of her son, Joseph, an attorney. Sophie's physical condition continued to decline after the stroke; Judge Longhi found that

[b]y the year 2002 Sophie had deteriorated. She . . . was quite frail, she was incontinent and very hard of hearing, to the point where it was most difficult to carry on a conversation with her over the telephone.

She was becoming more and more confused and she would at time[s] not remember people whom she had known for a very long period of time. She would forget to transmit messages left for her son Ste[ph]en who lived with her.

The judge also found that Sophie's confusion not long before October 11, 2002 -- the date she executed a will that lies at the heart of this litigation -- was such that she thought a friend was actually her daughter.

According to Judge Longhi's findings, sometime between October 1 and 11, 2002, Joseph prepared a two-page document entitled "Proposed Will Provision for Sophie Majka." Around this same time, Joseph called Seymour Feingold, Esq., who had been affiliated with the law firm that prepared Sophie's 1994 will, and discussed with him this two-page document that he (Joseph) had prepared. Feingold drafted a new will based upon Joseph's two-page draft and without any input from Sophie.

On October 11, 2002, Mary Ann's son, Timothy, drove Sophie to Feingold's office at Joseph's direction. Joseph arrived separately and attended the execution of the new will along with Sophie, Feingold and the witnesses to the will.

Judge Longhi described the testimony of Joseph and Seymour Feingold regarding the execution of the will in the following way:

Seymour Feingold never met or spoke to Sophie regarding the will prior to October 11, 2002 when it was executed in his office. Prior to the execution of the will he did not read the will to her. He testified that he gave it to her and that she read it and that . . . she seemed to understand it. He testified that he went over the important provisions, to wit he explained to her that the will divided the house and lot . . . equally between [Stephen and Mary Ann] and cut out Joseph altogether. And he stated that he asked if that's what she wanted to do and he was satisfied that she understood.

[Feingold] did not explain or go over, quote, the technical part of the will, end quote. Those were his words; he only went over the important parts he said. He said she seemed competent. He could not recall what conversations he had with her.

Mary Ann, who was in New Jersey at the time, testified that she knew nothing about the 2002 will prior to its execution.

This 2002 will altered the disposition of Sophie's home by including a provision that devised the property to Mary Ann and not, as directed by the 1994 will, to Stephen. The 2002 will, however, gave Stephen an option to purchase the home from Mary Ann.

Another provision detailed the manner in which the purchase price would be fixed. According to this provision, Mary Ann and Stephen would each be required to retain an appraiser and, if their two appraisals were "within ten percent of each other, based upon the lower appraisal, then Stephen . . . has the right to purchase the property from Mary Ann . . . at one-half the higher appraisal." The will further directed that if the two appraisals were "outside 10 percent of each other," the executor would obtain a third appraisal and the purchase price would then be one-half of the one other appraisal that proved closer "in real dollars" to the executor's appraisal. Oddly, the will declared that if Stephen chose to buy the home, then he was required to forward the entire amount of one-half of the acceptable appraisal to Mary Ann "within 4 months of execution of the Last Will and Testament" instead of at some point after Sophie's death. These provisions granted the named executor -- a close friend of Joseph's -- a significant role in the fixing of the purchase price and also permitted the executor to "determine whether there is an acceptable appraisal"; it is not clear from the content of the will what this particular provision was intended to mean, although it could be interpreted as authorizing the executor to unilaterally decide upon the adequacy of a party's appraisal, which could have a significant impact on the determination of the purchase price.

As Judge Longhi observed, Joseph testified that within the week following execution of the 2002 will, he received a telephone call from a visiting nurse who indicated that Sophie was in "a dangerous situation," prompting Joseph to arrange to have Sophie taken to South Carolina to live with Mary Ann. Stephen, who was then living in Sophie's home, was not consulted nor was he even advised until after she departed. Thereafter, Stephen was unable to communicate with Sophie until, on one occasion, Mary Ann told him that Sophie was "not feeling well," and put "the phone to her ear." Stephen yelled into the telephone but, due to Sophie's hearing problems or the extent of her illness, he received no response. As a result, Stephen contacted the local police in Mary Ann's community to ask that they check on Sophie. The police found Sophie to be very ill and took her to the hospital, where it was determined that she had suffered another stroke. Sophie died a few days later, on November 22, 2002.

Judge Longhi found that Joseph, Mary Ann, Timothy and Feingold were not credible. He found that in testifying, Joseph

was hesitant and extremely guarded. . . . Often he asked to have a question repeated even though the question was rather simple and straightforward. He did not exude confidence that what he was saying was the truth. He appeared nervous.

If it is not yet clear I will say [it] bluntly [that] I flat out do not believe him in most of the testimony that he gave that was important for me to arrive at factual conclusions.

Judge Longhi also found that Mary Ann and her claim that she knew nothing of the new will, or of the old will, was "simply not credible," that the testimony of Timothy Woodward "lack[ed] credibility" and did not make "sense," and that Feingold's testimony that the 2002 will was basically the same as the 1994 will "is just as silly as the contention[s]" of Joseph and Mary Ann, explaining further that Feingold's "testimony as [to] how this 2002 will was drafted by him and executed and the circumstances of its execution are frankly surprising if not shocking." On the other hand, Judge Longhi found Stephen's testimony and the testimony of others who spoke about Sophie's considerable confusion at and about the time of the execution of the 2002 will to be credible.

Based upon the credible testimony, Judge Longhi drew the following factual conclusions:

. . . [I]n October 2002 and for some time prior to that, Sophie was an elderly 81 year old woman who was physically frail, she was incontinent, was extremely hard of hearing and had become increasingly confused. At times she was confused about who were members of her family. She was dependent on her son, Joseph, a patent attorney, to give her advice and to help her with the finances and payment of bills. She depended and relied on him for advice and assistance and she placed confidence in him. She had give[n] him a [power of attorney] after her stroke in 1999 or 2000.

[Although she relied on Stephen for household advice and repairs], it was Joseph upon whom she would . . . rely on for advice regarding finances, bills and legal matters. He was the lawyer.

Judge Longhi did not find that Sophie lacked the requisite competence to make a will in 2002, which is governed by a very low threshold, see, e.g., In re Will and Testament of Liebl, 260 N.J. Super. 519, 524 (App. Div. 1992) ("As a general principle, the law requires only a very low degree of mental capacity for one executing a will."), certif. denied, 133 N.J. 432 (1993), but he did find that

[i]t is clear that due to her age, physical condition, confusion and dependence on Joseph she was unduly influence[d] to sign papers that . . . made significant changes in the disposition of her remaining assets, a change I believe she would not have done if she either fully comprehended what she was being asked to do or . . . was not subjected to undue pressure to change the will.

. . . .

It's abundantly clear to me that Joseph and [Mary Ann] planned to have Sophie go to South Carolina to stay with [Mary Ann], who was a nurse. They were concerned no doubt that Sophie had deteriorated to the point where she need[ed] to have assistance and they felt evidentially [sic] that [Mary Ann] could take better care of Sophie. They clearly did not want Ste[ph]en to know this plan. In fact, . . . one of them told somebody that if he knew about it he would cause trouble. In preparation for the move to South Carolina, they planned to change the will and to get a new power of attorney.

Based upon these factual findings, Judge Longhi was unable to conclude that Sophie lacked testamentary capacity but he did find that Joseph and Mary Ann failed to prove by clear and convincing evidence that the 2002 will was not the product of undue influence. He entered judgment on May 11, 2005, declaring the 2002 will to be a product of undue influence and directing that the 1994 will be admitted to probate.

II

In appealing the May 11, 2005 judgment, Joseph and Mary Ann have argued that the judge's factual findings were inaccurate or not based upon the evidence adduced at trial and that he also utilized incorrect legal principles. We reject these contentions.

The judge's factual findings were firmly based upon the evidence that he found to be credible and are, therefore, entitled to our deference. Gellert v. Livingston, 5 N.J. 65, 78 (1950); Liebl, supra, 260 N.J. Super. at 523-34.

We also conclude that Judge Longhi applied the correct legal principles in resolving this dispute. Undue influence in this setting is defined as "mental, moral or physical" exertion which destroys the "free agency of the testator" by preventing the testator "from following the dictates of his own mind and will and accepting instead the domination and influence of another." Haynes v. First National State Bank, 87 N.J. 163, 176 (1981). The burden of proving undue influence rests upon the contestant of a will unless the will benefits one who stood in a confidential relationship to the testator coupled with additional suspicious circumstances that require explanation. When the facts demonstrate both a confidential relationship and suspicious circumstances, the burden of persuasion shifts to the will's proponent to prove that the will was not the product of undue influence. See Haynes, supra, 87 N.J. at 176; In re Davis' Will, 14 N.J. 166, 169 (1953); In re Hopper's Estate, 9 N.J. 280, 282 (1952).

A confidential 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." Hopper, supra, 9 N.J. at 282. Suspicious circumstances need not be more than slight to shift the burden of proof. Haynes, supra, 87 N.J. at 176; In re Blake's Will, 21 N.J. 50, 55-56 (1956). We are satisfied that Judge Longhi's factual findings fully supported and justified his conclusion that the necessary requisites were present for a shifting of the burden of persuasion to the will proponents, Joseph and Mary Ann. As indicated, Sophie had given Joseph a power of attorney and relied upon his legal and financial advice from the time of her stroke until the creation of the 2002 will. He clearly was in a confidential relationship with Sophie. Suspicious circumstances were also plentiful, including: the peculiarities of the buy-out provisions of the will; the fixing of the time when Stephen would be required to buy out Mary Ann (as four months from the execution of the will instead of from a fixed date after Sophie's death); the removal of Sophie from her New Jersey home to South Carolina without the knowledge or consultation of Stephen, the party detrimentally affected by the 2002 will; the prevention of communication between Stephen and Sophie; the selection of a friend of Joseph's as her executor when Sophie had named a blood relative as executor in her 1994 will; and the lack of discussion between Feingold and Sophie regarding the preparation of the 2002 will. Accord Haynes, supra, 87 N.J. at 177.

Despite the presence of a confidential relationship and suspicious circumstances amply demonstrated in the judge's findings, Joseph and Mary Ann argue that the judge misinterpreted the case law regarding the shifting of the burden of proof. They argue that even if Joseph was in a confidential relationship it was of no moment since the benefits he would gain from either will did not materially differ. In other words, they argue that Joseph's confidential relationship is irrelevant when examining a will that more greatly benefited Mary Ann and that, to cause a shift in the burden of proof, Stephen was required to show that Mary Ann was in a confidential relationship with Sophie. Judge Longhi's oral decision suggests that he both considered this argument and implicitly rejected it. Judge Longhi quite correctly viewed Joseph and Mary Ann as having worked in concert with regard to the creation and execution of the 2002 will. As noted, he found that Joseph influenced and "orchestrated" the events leading up to the 2002 will's execution and that Mary Ann's denial of knowledge about what was then occurring was not credible. He also found that together they secretly caused both the removal of Sophie to Mary Ann's home in South Carolina and the creation of the new will in order to benefit Mary Ann in the disposition of Sophie's home. Mary Ann cannot benefit from a will which was the product of Joseph's undue influence when it is clear that they acted together.

Judge Longhi also correctly adopted the clear and convincing standard in determining whether Joseph and Mary Ann met their burden of proving the absence of undue influence. Our courts have consistently held that an attorney-beneficiary's involvement requires application of the clear and convincing standard, because, as explained by Judge Clapp in In re Estate of Weeks, 29 N.J. Super. 533, 539 (App. Div. 1954), that circumstance is "so heavily weighted with policy" as to require the application of a "sterner measure of proof." See Haynes, supra, 87 N.J. at 178; Davis, supra, 14 N.J. at 170; Hopper, supra, 9 N.J. at 282. In this regard, we again reject the argument that there is any great significance in the fact that it was Joseph, an attorney, who orchestrated the creation of the 2002 will and not Mary Ann, who gained the greatest benefit from that will. In these circumstances, it is appropriate that these twins, Joseph and Mary Ann, be deemed, in the eyes of the law, inseparable in determining whether the presumption of undue influence was overcome. That one of them was an attorney was sufficient to warrant the application of the more stringent clear and convincing standard.

Accordingly, we affirm substantially for the reasons set forth in Judge Longhi's comprehensive and thoughtful oral decision. We also reject the contention asserted by Joseph and Mary Ann that any of their arguments are of constitutional dimension. See United States v. Kingsley, 41 N.J. 75, 79 (1963); In re Will of Ferree, 369 N.J. Super. 136, 140 (Ch. Div. 2003), aff'd o.b., 369 N.J. Super. 1 (App. Div. 2004). Any other arguments urged by Joseph and Mary Ann that we have not specifically addressed are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Timothy and Joseph told markedly different stories about how Timothy came to drive Sophie to Feingold's office on October 11, 2002.

(continued)

(continued)

14

A-5415-04T1

 

October 16, 2006