IN THE MATTER ESTATE OF JOSEPH CELSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6191-05T36191-05T3

___________________________

IN THE MATTER OF THE ESTATE

OF JOSEPH CELSO, Deceased.

___________________________

 

Argued October 22, 2007 - Decided

Before Judges Weissbard, S.L. Reisner and Gilroy.

On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, 138572.

Joel A. Davies argued the cause for appellant Cheryl Celso (Taff & Davies, attorneys; Mr. Davies, of counsel and on the brief).

Charles E. Starkey argued the cause for respondent Joseph DiGilio (Starkey, Kelly, Bauer, Kenneally & Cunningham, attorneys; Mr. Starkey, of counsel and on the brief).

PER CURIAM

Defendant Cheryl Celso appeals from an order voiding the probate of the May 29, 1997, Last Will and Testament of her father, Joseph Celso (decedent), and admitting an after-discovered will to probate. Plaintiff Joseph DiGilio, a long-time friend of decedent, produced the after-discovered will, which disinherited defendant and left decedent's entire estate to plaintiff. The trial court found that the after-discovered will was not a product of undue influence, ordering that it be admitted to probate. We affirm.

Plaintiff filed his complaint on March 17, 2000, seeking to admit the after-discovered will of decedent to probate. Defendant filed her answer on June 8, 2000. After discovery was completed, plaintiff moved for summary judgment, which was granted. On December 30, 2003, we reversed the grant of summary judgment and remanded to the trial court for a plenary trial on the merits.

Trial took place over five days in October 2004. On November 19, 2004, the judge rendered an oral opinion, ruling that decedent's December 15, 1999 will was not the product of undue influence and voiding the probate of a will executed by decedent on May 29, 1997. On June 23, 2006, the judge awarded defendant counsel fees, payable from decedent's estate.

I

The only real asset in decedent's estate was property located at 430 Cook Road in Jackson. The property consisted of twelve acres and included a family home. Originally, title to the property was in the names of both decedent and his wife, Rose Celso. Decedent, however, deeded his interest in the property to Rose in the 1970's as part of a property settlement agreement. They never divorced and continued to live on the property together. Rose died in 1997.

Plaintiff and decedent had been friends for thirty years. In July 1998, the two men, each represented by counsel, entered into a contract for the sale of real estate. The contract provided that decedent, as seller, agreed to convey to plaintiff, as purchaser, approximately ten acres of the land in Jackson. Decedent would retain approximately one acre of land on which his house was located. The purchase price was $125,000. The contract was contingent upon subdivision approval allowing the buyer to divide the property into seven buildable lots.

The contract also provided that the seller had to provide marketable title to the property, which was still in Rose's name. Through a September 1998 agreement, Rose's estate conveyed title to Joseph. At that time, decedent signed a mortgage obligating him to pay defendant, his daughter, one-half of the proceeds from the sale of the property, or a minimum of $65,000. Decedent recorded the deed to the property on October 15, 1998, but the mortgage was not recorded at that time.

On September 29, 1998, decedent executed a power of attorney appointing plaintiff as his attorney in fact. He did that so he would not have to go to town hall for any proceedings regarding the subdivision of the property. Plaintiff never used the power of attorney and decedent revoked it on June 21, 1999.

On December 4, 1998, decedent was supposed to appear in court regarding the purchase of a tractor that was charged on a Sears Roebuck and Company account but never paid for. Plaintiff testified that decedent was too sick to go to the courthouse that day, so plaintiff went in his place and informed the court that decedent was sick and unable to appear.

Defendant recorded the mortgage in June 1999. In November 1999, plaintiff accompanied decedent to the office of attorney John Flynn. Decedent was upset that his daughter had recorded the mortgage and wanted Flynn to start a lawsuit against her. During this visit, Flynn called defendant to inquire about the outstanding loan from Rose and the recording of the mortgage. Defendant stated that she did not owe her father any money and that she wanted her $65,000; she hung up the phone. Flynn was retained to pursue the matter, with plaintiff paying the $1500 retainer fee. Plaintiff testified that the $1500 was to be deducted at closing from the purchase price of the property.

Several witnesses testified that decedent did not understand what was going on with the mortgage on the property and that he had heated arguments with his daughter during the summer of 1999. However, their relationship improved during the fall of 1999, and they discussed the possibility of defendant coming to live at decedent's home with him.

On December 15, 1999, plaintiff received a telephone call at his home from decedent asking if he could stop over at plaintiff's house. Also at plaintiff's house that morning were his niece, Carmella Davis, and her husband, Peter. Peter was painting an upstairs bedroom.

Decedent arrived carrying a large manila envelope. Carmella Davis let him in and brought him into the kitchen to see her uncle, the plaintiff. Decedent stated that he had brought something he wanted plaintiff to look at, removed a document from the manila envelope, and told plaintiff it was a will. It is unclear who prepared the will, but decedent's attorney, John Flynn, testified that he did not prepare it.

Decedent asked Carmella to print the date, her name, the name of her husband, and their address on page two of the document. On page three, she printed decedent's name, along with her name, her husband's name and the date. Peter was called downstairs, and decedent asked him and Carmella to sign the will as witnesses. Carmella explained that they would need to sign the will in front of a notary or the will would not be valid.

Plaintiff said that he knew a notary and called Ronald Ramsey, who agreed to come to plaintiff's house. Ramsey, a notary for fifteen years, kept a book in which he recorded all activity related to his position as a notary. After Ramsey arrived, he obtained identification from decedent, Carmella Davis and Peter Davis. Ramsey observed them signing the document.

It turns out, however, that Carmella and Peter signed only the self-proving affidavit in front of the notary. Rather than signing the attestation clause, as they should have, Carmella instead only printed both her and her husband's names at that place in the document.

Ramsey then put his seal on the will and signed it. In his book on December 15, 1999, he recorded decedent's name, Carmella and Peter Davis as witnesses to the will, and the driver's license numbers of all the parties.

Decedent's neighbor, Pamela Namowitz, testified that she knew decedent for twenty years and that he was a "real strong, like independent kind of a guy," who made his own decisions. He would not take orders from anyone, and resented it when people tried to push him into doing things he did not want to do. According to Namowitz, decedent remained this way until his death.

On January 5, 2000, about three weeks after signing the will, decedent died at the age of 82. On February 7, 2000, defendant submitted a last will and testament, dated May 29, 1997, to probate with the Ocean County Surrogate's office. Pursuant to this will, defendant was the sole beneficiary and executrix of decedent's estate. The will was admitted to probate.

On March 17, 2000, plaintiff filed a verified complaint seeking to admit the will decedent had executed on December 15, 1999. This will disinherited defendant and left the entire estate to plaintiff. In an oral opinion, the judge ruled that decedent's December 15, 1999, will was not the product of undue influence and voided the probate of decedent's May 29, 1997, will. As there was no assertion that there was any mental, moral or physical exertion that destroyed the free agency of decedent, the issue was whether there had been a confidential relationship between decedent and plaintiff.

First, the judge determined that the fact that there was a power of attorney did not trigger a confidential relationship. The power of attorney was done in connection with the sale of property from decedent to plaintiff and to effectuate the land use approvals connected with that sale. The judge also found that the real estate contract between decedent and plaintiff did not create a confidential relationship.

Assuming arguendo that these factors did meet the requirements of a confidential relationship, the judge found that plaintiff had proved by a preponderance of evidence that the December 15, 1999, will reflected decedent's plan and design.

The judge noted that "it's tempting to wonder what happened here" given that decedent enjoyed a "good relationship" with his daughter. As noted earlier, however, several witnesses testified that decedent became very upset when he learned that defendant had recorded the mortgage on the Jackson property. Decedent stated that he did not understand what was going on with the mortgage and he reportedly had "heated arguments" with defendant during the summer of 1999. Nevertheless, over the next few months, the relationship between decedent and defendant improved, and by December 1999 they were talking of defendant coming back to live at decedent's home.

The judge concluded that decedent "found himself in a bind in which he wanted to meet his commitments to his friend to whom he had promised to sell the property and at the same time to be able to have his daughter live with him." Therefore, decedent "decided he was going to meet his commitments to Mr. DiGilio by . . . executing that Will. And in doing so he was not completely cutting off Cheryl because she still had her interest under her mortgage."

Thus, the judge found that the will reflected a well thought out disposition of decedent's property. Therefore, the judge ordered the Last Will and Testament of December 15, 1999, to be admitted to probate.

Defendant argues that the trial court erred in ruling that there was no confidential relationship between plaintiff and the decedent. She asserts that several facts support a finding that such a relationship existed: the power of attorney given to plaintiff by decedent; the contract between plaintiff and decedent for the sale of real estate; plaintiff's testimony that he appeared for decedent in the Ocean County small claims court and represented to the court that decedent was too sick to appear; and plaintiff's payment of a $1500 retainer fee to decedent's attorney.

II

On appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED IN RULING THAT THERE WAS NO CONFIDENTIAL RELATIONSHIP BETWEEN THE PLAINTIFF AND THE DEFENDANT.

POINT II: THE TRIAL COURT ERRED IN RULING THAT THERE WAS NO SUSPICIOUS CIRCUMSTANCES SURROUNDING THE EXECUTION OF THE DECEDENT'S DECEMBER 14, 1999 WILL.

POINT III: THE TRIAL COURT MISAPPLIED THE BURDEN OF PROOF REQUIRED FOR UNDUE INFLUENCE CASES.

POINT IV: THE TRIAL COURT ERRED IN RULING THAT THE DECEMBER 15, 1999 LAST WILL AND TESTAMENT WAS EXECUTED IN COMPLIANCE WITH N.J.S.A. 3B:3-2.

POINT V: THE TRIAL COURT ERRED IN REDUCING THE AMOUNT OF THE DEFENDANT'S COUNSEL FEES TO BE PAID BY THE DECEDENT'S ESTATE.

III

"If a will is tainted by 'undue influence,' it may be overturned." Haynes v. First Nat'l State Bank of New Jersey, 87 N.J. 163, 176 (1981). "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,

[T]he 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)).]

Thus, 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 confiden-tial 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."

[Fulper, supra, 99 N.J. Eq. at 314 (quoting Cowee v. Cornell, 75 N.Y. 91, 99-100 (1878)).]

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)].

Thus, confidential relationships have been found between a father and son, Pascale, supra, 113 N.J. at 34, aunt and her nephew, In re Probate of Last Will and Testament of Catelli, 361 N.J. Super. 478, 486 (2003), mother and daughter, In re Estate of Penna, 322 N.J. Super. 417, 422 (App. Div. 1999), and the preparer of blind decedent's tax returns and decedent, In re Probate of Alleged Will of Landsman, 319 N.J. Super. 252, 267 (App. Div. 1999).

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." Ostlund, supra, 391 N.J. Super. at 402 (quoting Stroming v. 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. at 224.

"The findings of the trial court on the issues of testamentary capacity and undue influence, though not controlling, are entitled to great weight since the trial court had the opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony." Gellert v. Livingston, 5 N.J. 65, 78 (1950); In re Hoover, 21 N.J. Super. 323, 328 (App. Div. 1952), certif. denied, 11 N.J. 211 (1953). "Such factual findings should not be disturbed unless they are so manifestly unsupported or inconsistent with the competent, reasonably credible evidence so as to offend the interests of justice." In re Will and Testament of Liebl, 260 N.J. Super. 519, 524 (App. Div. 1992).

Here, the trial judge found that neither the power of attorney nor the real estate contract between plaintiff and decedent gave rise to a confidential relationship between the two men. We conclude that these findings are supported by the evidence in the record. The power of attorney was given to plaintiff for the specific purpose of enabling plaintiff to pursue the subdivision of the property pursuant to the real estate contract. Moreover, decedent revoked the power of attorney some six months before he executed the December 15, 1999 will, and plaintiff never used the power of attorney. Granting the power of attorney did not create a situation in which decedent depended on plaintiff to a degree that would give plaintiff an unfair advantage in their dealings.

Additionally, the real estate contract between decedent and plaintiff did not give rise to a confidential relationship. Both parties were represented by counsel when entering into the contract; thus, they were on equal footing with regard to the sale of the property. The contract did not put decedent in a position of dependence and did not prevent decedent and plaintiff from dealing on terms of equality.

Nor does the $1500 retainer paid by plaintiff to decedent's attorney compel the conclusion that there was a confidential relationship. Plaintiff testified that this money was to be deducted from the purchase price of the property at closing. The money was not a gift from plaintiff to decedent, and would have been repaid by decedent had the real estate contract closed. Thus, this payment does not conclusively demonstrate that plaintiff and decedent were dealing with each other in a way other than as equals.

Finally, defendant argues that plaintiff's testimony that he appeared in the Ocean County small claims court and represented that plaintiff was too ill too appear is evidence of a confidential relationship. Plaintiff testified that the day decedent was supposed to appear in court decedent was sick, and that plaintiff went to court to inform the judge that decedent was sick and unable to appear. Plaintiff's testimony indicates that this was a situation in which a friend did a favor for another friend, and not a situation in which plaintiff was given an unfair advantage in their dealings based on decedent's dependence on and trust of plaintiff.

Consequently, the conclusion by the trial judge that none of these items, individually or collectively, mandated a finding of a confidential relationship, was reached on substantial credible evidence and will not be disturbed.

IV

In light of our conclusion that the finding of no confidential relationship must be affirmed, we have no need to address defendant's second and third points.

V

In her point IV, defendant argues that the court erred in ruling that the December 15, 1999 last will and testament was executed in compliance with N.J.S.A. 3B:3-2, because the will did not contain the signatures of at least two persons who witnessed the signing of the will by the testator. We conclude that the judge did not err in finding clear and convincing evidence of the witnesses' intent to attest the will, despite signing the self-proving affidavit and not the attestation clause.

As noted, the witnesses to the execution of the will, Carmella Davis and Peter Davis, did not sign the attestation clause. Instead, Carmella Davis printed her name and her husband's under the attestation clause, and they both signed the self-proving affidavit.

N.J.S.A. 3B:3-2 requires that a will be in writing, that it is signed by the testator, and that it is signed by at least two persons, each of whom witnessed the signing of the will. This last requirement is known as the attestation clause. In re Will of Ranney, 124 N.J. 1, 7 (1991).

Self-proving affidavits and attestation clauses serve different functions. Id. at 8. Attestation clauses "facilitate probate by providing 'prima facie evidence' that the testator voluntarily signed the will in the presence of the witnesses." Ibid. By comparison, self-proving affidavits are "sworn statements by eyewitnesses that the will has been duly executed." Ibid. Wills may be made self-proving "simultaneously with or after execution." Id. at 9; N.J.S.A. 3B:3-4, -5. While "[t]he affidavit performs virtually all the functions of an attestation clause, [it] has the further effect of permitting probate without requiring the appearance of either witness." Id. at 8-9. In discussing the differences between the two, the Court noted that the Legislature envisioned the will, including the attestation clause, as independent from a self-proving affidavit. Id. at 9. Thus, signatures of the witnesses on the self-proving affidavit but not the attestation clause do not literally comply with the requirements of N.J.S.A. 3B:3-2, as it existed before its recent amendment.

However, a will may be admitted to probate under circumstances where it does not literally comply with the statutory attestation requirements if there was substantial compliance. Id. at 11-15. In Ranney, the will of Russell Ranney was prepared by an attorney. Id. at 3. Ranney visited his attorney's office to execute the will, and another attorney in the firm as well as a secretary acted as witnesses. Id. at 3-4. These witnesses signed a self-proving affidavit and not an attestation clause. Id. at 4. The Court held that this defect could be overcome by clear and convincing evidence that the will substantially complied with statutory requirements:

[I]f the witnesses, with the intent to attest, sign a self-proving affidavit, but do not sign the will or an attestation clause, clear and convincing evidence of their intent should be adduced to establish substantial compliance with the statute.

[Id. at 14.]

The record suggested that the proffered instrument was the will of Russell Ranney, that he signed it voluntarily, that the witnesses signed the self-proving affidavit at Russell's request, and that they witnessed his signature. Id. at 15. The Court remanded the case because the party objecting to the probate of the will questioned whether Russell "actually signed" the document. However, if the trial court conducted a hearing and was satisfied that the execution of the will substantially complied with the statutory requirements, the will could be admitted to probate.

In this case, the December 15, 1999, will was not executed in compliance with the attestation requirements of former N.J.S.A. 3B:3-2 because the witnesses to the execution of the will, Carmella Davis and Peter Davis, signed the self-proving affidavit and not the attestation clause. However, we conclude, as did the trial judge, that the execution of the will substantially complied with the statutory attestation requirements.

The judge heard testimony from plaintiff, Carmella Davis, Peter Davis, and the notary regarding the execution of the will. There was testimony that decedent asked the Davises if they would witness him signing the will. Additionally, the signatures all occurred before the notary, who asked for identification from decedent and the witnesses and affixed his signature and seal to the document. The evidence is clear that the witnesses had the intent to attest the will.

Therefore, we hold that the trial court did not err in finding clear and convincing evidence of the witnesses' intent to attest the will, and in concluding that the will could be admitted to probate.

VI

Defendant argues that the judge erred in setting the amount of her counsel fees to be paid by the decedent's estate.

The court awarded attorneys' fees under R. 4:42-9(a)(3), which states that:

In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate.

The judge found that decedent's estate should be responsible for "at least a portion" of defendant's legal fees under R. 4:42-9(a)(3) because she had reasonable cause to contest the validity of the after-discovered will. The judge elaborated as follows:

subject to the Court's review as to reasonableness as to amount and as to the expenditure of time that the Estate should be responsible for at least a portion of those fees that were incurred with that. So I will review the Affidavit of Services by Mr. Davies and make and award of counsel fees payable by the Estate on that matter.

Defendant argues that the court erred in ordering the estate to pay a lower fee than defendant had requested. Defendant requested counsel fees and costs in the amount of $22,551.33 for Joseph Hrymack, Esq. (defendant's original attorney) and $67,082.00 for Taff & Davies, Esq. (defendant's trial attorneys), for a total amount of $89,633.33. The court awarded defendant counsel fees in the amount of $10,500 plus $193.83 costs (for services rendered by Hrymack) and $39,705 plus $907.00 costs (for services rendered by Taff & Davies), for a total award of $51,305.83. Defendant also contends that the judge "provided no basis for the reduction in fees awarded to" her. We take this to mean that the judge failed to provide specific findings of fact and conclusions of law on the issue. See R. 1:7-4(a). There is merit to defendant's claim in that regard. The record only contains the judge's order making the award after receiving the affidavits of service.

Normally we might consider remanding to allow the judge to fill in this one omission in her otherwise exemplary handling of the case. Several reasons, however, motivate us to not do so. First, the trial judge is no longer on the bench. Second, as plaintiff correctly points out, this estate essentially consisted of the single piece of property - an asset of limited value. While the current value of the property is unknown, defendant has not countered plaintiff's suggestion that a reasonable value is in the neighborhood of $160,000, the amount for which decedent's late wife had unsuccessfully sought to sell the property. Taking that value and deducting defendant's mortgage of one-half the net proceeds leaves approximately $80,000. Thus, the fee award of $51,305.83 would be over sixty percent of the estate.

In any event, whatever might be the correct calculation, we see little to be served by a remand for findings by a different judge, which would only result in more fees on both sides, including more from the estate. Under the circumstances, we elect to invoke our original jurisdiction, R. 2:10-5, and bring this litigation to a conclusion. Having measured the judge's award against the factors set out in In the Matter of the Estate of Reisen, 313 N.J. Super. 623, 629 (Ch. Div. 1998) (quoting In re Bloomer, 37 N.J. Super. 85, 94 (App. Div. 1955)), we affirm the trial judge's determination.

Affirmed.

 

The Legislature approved revisions to N.J.S.A. 3B:3-2 in 2004. However, because decedent executed this will in 1999, the prior version of the statute applies.

(continued)

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A-6191-05T3

November 20, 2007