IN THE MATTER OF THE ESTATE OF EVELYN V LEWIS

NOT FOR PUBLICATION WITHOUT THE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 EVELYN V. LEWIS.

_______________________________

November 17, 2014

Before Judges Lihotz, Espinosa and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Camden County, Docket No. CP-0162-2011.

Kenneth E. Raynor argued the cause for appellant Jeffrey M. Lewis (Simeone & Raynor, LLC, attorneys; Mr. Raynor, on the briefs).

Pasquale A. Guglietta argued the cause for respondents Arthur Lewis, Hunter Lewis and Jennifer B. Lewis-Hall (Price & Price, LLC, attorneys; Carl A. Price, Jr., of counsel and on the brief).

PER CURIAM

We consider plaintiff Jeffrey M. Lewis's challenges to three orders entered during the pendency of this probate action. Jeffrey filed a complaint against defendants, Arthur Lewis, his father, and Hunter Lewis and Jennifer B. Lewis-Hall, his siblings (collectively defendants), seeking production of an original will to commence probate of assets owned by his mother, Evelyn Lewis, who passed away on October 7, 2010.1 Evelyn owned assets in New Jersey and realty in the Caribbean territory of Anguilla. The orders under review effectively denied Jeffrey's claims and dismissed his complaint, concluding he had no standing to commence a New Jersey probate proceeding because Evelyn's New Jersey assets were all jointly titled and the court lacked jurisdiction to address the disposition of the realty she owned in Anguilla.

On appeal, Jeffrey argues the Probate judge erred by not considering his claims; by granting summary judgment in light of materially disputed facts he presented; in determining he lacked standing to seek probate of Evelyn's will; and by denying his claims for attorney's fees and reimbursement of monies he spent to rehabilitate the Anguilla real estate. Following our review, we conclude these arguments lack merit and we affirm the summary judgment dismissal of Jeffrey's complaint, as well as the orders denying certain discovery, attorney's fees and reimbursement of expenses.

I.

At the time of her death, Evelyn was domiciled in Cherry Hill, where she and Arthur lived for approximately thirty-eight years. In addition to their marital home, Evelyn and Arthur owned three bank accounts in New Jersey. The home was titled to Evelyn and Arthur as tenants by the entireties. One bank account was held jointly with Arthur; another held jointly with Arthur and Jennifer, who lived in New Jersey; and a third payable upon death to Jennifer. Other than personal effects, the record does not reflect Evelyn owned any other assets in New Jersey.

Further, Evelyn owned three parcels of land in Anguilla. She possibly owned realty in the Bahamas and Bermuda, but evidence of assets in these countries was not presented.2 Jeffrey also argued Evelyn held bank accounts in Anguilla, but no documentation supporting this claim was produced.

Following Evelyn's death, Jeffrey went to Anguilla. Jeffrey expressed concerns about potential tax consequences associated with Evelyn's Anguilla assets and sought to inspect the properties. While there, Jeffrey obtained appraisals and certificates of ownership for the three Anguilla properties. He also addressed one tenant's complaints by correcting "outstanding property violations," such as insect infestations and plumbing problems. Jeffrey certified he spent $15,443.78 to "remediate various health risks" because no one had taken charge of the estate. He sought reimbursement of this sum.

Months later, Jeffery became disturbed as Evelyn's will had not yet been disclosed. He also believed Jennifer transferred funds held by his parents in Anguilla to her own accounts. On June 9, 2011, Jeffrey filed a "caution," which is similar to a caveat, with the Anguilla courts. The caution prevented transfer of the Anguilla realty until the matter was reviewed.

Thereafter, because Evelyn's will had not been probated, Jeffrey commenced this action on July 14, 2011, compelling production and probate of Evelyn's original will. The Chancery Division ordered defendants to "make the original wills available to [] Jeffrey for an inspection at a time convenient to both parties." The court further ordered defendants to provide an informal accounting of Evelyn's probate estate. The parties engaged in discovery over the ensuing six months.

During the course of discovery, defendants produced Evelyn's past five wills. One of the wills, executed on May 4, 2006, in New Jersey, named Arthur as Evelyn's executor and devised and bequeathed all New Jersey assets to him if he survived. Jeffrey points out the will did not explicitly revoke all previously executed wills. While that assertion is accurate, it is also noted all prior wills may have included various distributions of Evelyn's foreign realty and some specific personal property bequests of automobiles, but each consistently disposed of Evelyn's right, title and interest in New Jersey assets to Arthur.

The other wills, executed in 1992, 1998, 2005, and 2007, predominantly and, at times exclusively, addressed the disposition of Evelyn's Anguilla realty. Some of these documents were executed in New Jersey, but the most recent, the 2007 will, was executed in Anguilla on August 17, 2007.

The 1998 will devised the three Anguilla parcels to Jennifer, Jeffrey and Hunter. That disposition subsequently changed over time, culminating with the 2007 will, which named Jennifer as executor and devised all three parcels solely to her.

The thrust of Jeffrey's contentions is Evelyn suffered a stroke in 2004 and was afflicted by other ailments, such that her physical condition prevented her from acting knowingly and independently. He maintained Jennifer exerted undue influence upon Evelyn, convincing her to transfer her assets and change her will, effectively disinheriting him and Hunter.

Jennifer presented the 2007 will for probate in Anguilla. Proceedings were conducted before the Eastern Caribbean Supreme Court in the High Court of Justice in the Territory of Anguilla. Jeffrey eventually withdrew his caution and the action in Anguilla was resolved in September 2012. Arthur presented Evelyn's 2006 will for probate in Camden County on December 23, 2011. At the close of discovery, defendants moved for summary judgment.

Prior to review of the summary judgment motion and a motion to quash subpoenas served by Jeffrey upon Jennifer's bank to obtain her account statements, Jeffrey, through counsel, raised an alleged conflict of interest necessitating defense counsel's recusal. He asserted Jennifer committed perjury during her deposition and that her attorney knew of the perjury and must now be precluded from providing representation. Jeffrey also suggested counsel could not represent all three defendants because they held adverse interests. He argued "the 2007 will, if deemed valid, removed Arthur and his other children as beneficiaries," thereby creating a conflict of interest among defendants. Specifically, he maintained Jennifer exerted undue influence by convincing Arthur to execute a new will that disinherits him and Hunter. The judge declined to consider these issues, which she found not relevant or not properly before the court.

Opposing summary judgment, Jeffrey asserted Evelyn's "2006 and 2007 wills are contrary" and the admission of the 2007 to probate in Anguilla "constitutes a fraud on the New Jersey Surrogate." The judge rejected Jeffrey's argument. She noted the 2006 will, executed in New Jersey, addressed only New Jersey assets, while the 2007 will, executed in Anguilla, addressed only assets in that country. Referring to the probate of Evelyn's 2006 will, the judge declined Jeffrey's request to investigate the disposition of other possible assets, finding no evidence that probate assets existed.

In addition, the judge specifically held, as a matter of law, New Jersey could not bind the Anguilla courts were it to address the disposition of real property located in Anguilla. She observed Jeffrey initiated an action there, prior to filing his lawsuit in New Jersey, and remained free to address any claims or interests regarding real property located in that forum. As for Evelyn's New Jersey assets, the judge found all had passed by operation of law to Arthur. The judge also noted, were the 2007 will invalidated, the laws of intestacy provided Arthur would inherit Evelyn's estate. Accordingly, Jeffrey had no standing to pursue his claims because there was nothing to probate. The judge granted summary judgment to defendants and quashed the subpoenas. Jeffrey's requests for attorney's fees and reimbursement of expenses, however, were left open. The judge advised Jeffrey to formally present these claims in an appropriate motion.

Approximately three months later, Jeffrey moved for payment of $50,102.86 in counsel fees and costs and $15,443.78 in expenses incurred to maintain the Anguilla property, stating his efforts benefited the estate. Jeffrey characterized these demands as administrative expenses, due and payable, as provided by Rule 4:42-9(a)(3). He also argued the need for discovery to establish Evelyn had personal property in Anguilla, including cash, which should "be dealt with in New Jersey."

The court declined the request for additional discovery; the judge found Jeffrey had sufficient opportunity to collect necessary information over the prior months. She rejected his demands for payment of counsel fees and reimbursement of claimed administrative expenses, noting "the [c]ourt granted summary judgment finding it had no jurisdiction, and remanded the contest regarding the [2007] will to the Anguilla courts[,]" and, therefore, "it would be unfair in this matter to grant counsel fees to Jeffrey, since . . . he was advancing his own interest in this matter to get the wills probated in New Jersey." The court also agreed with defendants that no award was possible because no estate existed in New Jersey to pay the award. Jeffrey's appeal followed.

We review the trial court's summary judgment order de novo, applying the same standard that governs the trial court. Davis v. Brickman Landscaping, LTD., __ N.J. __, __ (2014); W.J.A. v. D.A., 210 N.J. 229, 237 (2012). Pursuant to Rule 4:46-2(c), we first "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"The very object of the summary judgment procedure [] is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). A motion for summary judgment will not be precluded by bare conclusions without factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:46-2. "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (citation omitted). If no genuinely disputed fact exists, we must then decide whether the trial court's ruling on the law was correct, a review which is not deferential. W.J.A., supra, 210 N.J. at 237-38.

Jeffrey contends the court's orders were entered in error. Essentially, he challenges the entry of summary judgment; the orders denying his efforts to discover whether Jennifer removed Anguilla personal property to New Jersey; and whether Evelyn owned realty in Bermuda and the Bahamas, and rejection of his claims for administrative expenses.

Here, the judge concluded Jeffrey lacked standing to file suit and New Jersey courts lacked jurisdiction to resolve disputes regarding Anguilla realty.3 Despite Jeffrey's assertion that "substantial questions" regarding Jennifer's credibility exist and his claim for the necessity of continued discovery, the Probate judge's decisions were legal ones, not impacted by alleged factual disputes.

We easily dispose of any assertion that New Jersey has jurisdiction to entertain claims affecting the Anguilla real property, devised by Evelyn's 2007 will. It is a uniform and consistent principle of international property law that "the laws of the place where such property is situate[] exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnites which should accompany them." Allaire v. Allaire, 37 N.J.L. 312, 321-322 (Sup. Ct. 1875), aff'd 39 N.J.L. 113 (E. & A. 1876). Absent subject matter jurisdiction, the courts are powerless to act. Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 352 (App. Div.) ("It is well established that a court cannot hear a case as to which it lacks subject matter jurisdiction." (citation and internal quotation marks omitted)), certif. denied, 179 N.J. 372 (2004).

Jeffrey offers no basis to refute the judge's determination. Importantly, in filing his challenge in Anguilla, Jeffrey interposed objections to transferring the realty to Jennifer, as well as asserting a claim that Evelyn was unduly influenced by her daughter to modify her will. After negotiation, that matter was settled. The Anguilla judgment must be recognized as fully dispositive of these issues, which may not be litigated anew in New Jersey. See Caruso v. Caruso, 106 N.J. Eq. 130, 138-40 (E. & A. 1930) (holding "the validity of foreign judgments and decrees, [is] a matter of comity between sovereign states"). See also Aspden v. Nixon, 45 U.S. 467, 478, 11 L. Ed. 1059, 1064 (1846) ("It is a principle universally acknowledged, that the judgment or decree of a court having jurisdiction is not only final as to the matter determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided.")

Just as New Jersey cannot determine issues surrounding Anguilla realty, the settlement of the Anguilla action does not prohibit Jeffrey from asserting different claims specific to probate of Evelyn's New Jersey estate. See id. at 477-78, 11 L. Ed. at 1065 (holding probate of will in England addressed decedent's English assets and did not affect United States assets, which were "wholly distinct"). However, to maintain an action in New Jersey, Jeffrey must have standing.

"Standing refers to the plaintiff's ability or entitlement to maintain an action before the court." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div. 1997), appeal dismissed by, 152 N.J. 361 (1998). This is "'a threshold justiciability requirement which must be determined before a court may proceed to consider the substantive merits of the case.'" Id. at 410 (quoting Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 424 (1991) (brackets omitted)). To possess standing, a plaintiff "must have a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and there must be a substantial likelihood that the plaintiff will suffer harm in the event of an unfavorable decision." Id. at 409-10.

In probate actions, a party has standing to challenge the probate of a will or a lifetime transfer of assets because of undue influence, if he or she is a beneficiary, either testate or intestate. R. 4:26-1. Also, one may qualify as a "party in interest" and be afforded standing to challenge a will if "the person [is] injured by the probate of the will he [or she] contests." Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:26-1 (citing In re Myers' Will, 20 N.J. 228, 235 (1955)). See In re Will of Maxson, 90 N.J. Super. 346, 348 (App. Div. 1966) (internal quotation marks omitted).

Jeffrey asserts claims of fraud, breach of fiduciary duty and tortious interference with inheritance by Jennifer. Also he asserts the right to compel Arthur, or another appointed fiduciary, to provide a formal accounting of Evelyn's assets and ascertain whether she held real property in Bermuda, the Bahamas or personal property in Anguilla. Finally, he asserts a need to protect the financial interests of Arthur. We determine these arguments are unavailing.

Addressing the contentions in reverse order, we note "[o]rdinarily, a litigant may not claim standing to assert the rights of third parties." Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 163 (App. Div. 2010) (citation and internal quotation marks omitted), aff'd in party and modified in part, 206 N.J. 209 (2011). It is equally disingenuous for Jeffrey to seek protection of Arthur by suing him.

Next, as discussed, dismissal of the action in New Jersey has no effect on the disposition of real estate in foreign countries. If Jeffrey locates real estate in Bermuda or the Bahamas, that country's law will dictate disposition of the res and whether Evelyn's prior wills may be probated. Otherwise, the foreign jurisdiction's intestate succession law will govern disposition. New Jersey has no interest in these issues.

Finally, the record contains no evidence of New Jersey assets subject to probate. Jeffrey's claims of Jennifer's undue influence and purported fraud in securing the 2007 Anguilla will implicate issues previously raised and settled in the Anguilla proceeding. The 1992 will's inclusion of a disposition clause leaves the residuary estate to the children equally; it does not create a beneficial right if no residuary assets exist. Similarly, Jeffrey's assertion that the New Jersey court must continue the proceeding to dispose of Evelyn's personal property located in Anguilla fails because he has not produced proof of these assets. We simply cannot ignore that this claim involves events purported to occur in or regarding assets located in Anguilla. The prior litigation offered Jeffrey both the forum and opportunity to pursue those theories of liability, or, at the very least, to develop the proofs to support his claim.

Assets owned by Evelyn in New Jersey were transferred to Arthur by operation of law. The anticipation that other assets might be uncovered is insufficient to allow this cause of action to proceed. Because no New Jersey assets have been identified, probate proceedings in New Jersey are unnecessary. Accordingly, Jeffrey cannot present a justiciable claim upon which to stand. In the absence of a basis to support standing to sue, Jeffrey's complaint cannot be entertained.

Following our scrutiny of the record and Jeffrey's arguments claiming fraud and undue influence, we conclude they are speculative, supported only by a deep distrust he developed for Jennifer. The judge properly ordered dismissal.

Finally, we reject as meritless Jeffrey's challenges to the order denying an award of administrative expenses regarding his counsel fees and monies expended during his trip to Anguilla. Rule 4:42-9(a)(3), permits "[i]n a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent." In instances where "probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will . . . , the court may make an allowance to . . . the contestant, to be paid out of the estate." Ibid. Here, Jeffrey's challenges to the probate of the 2006 will were properly rejected and found not reasonable. Accordingly, no basis for a fee award exists. See Pressler & Verniero, Current N.J. Court Rules, comment 2.3 on R. 4:42-9(a)(3) ("A non-fiduciary bringing an action to defeat probate of a will or to defeat or claim a testamentary gift is not ordinarily entitled to an award of attorney's fees.").

Regarding reimbursements of costs incurred during Jeffrey's independent trip to Anguilla and his unilateral undertaking of real estate appraisals, we conclude these too, were properly rejected. The expenditures appear to have been incurred in contemplation of the Anguilla action and have no apparent relevance in the New Jersey litigation. Even if Jeffrey's actions motivated Arthur to commence the New Jersey probate proceeding, an administrative claim nonetheless fails as no New Jersey estate exists from which to recover an award. See In re Reisdorf, 80 N.J. 319, 327 (1979) (holding the estate in a will contest to be "the exclusive source of counsel fees").

For the reasons cited by the Probate judge the orders will not be disturbed. Any claims not otherwise addressed have been found to lack sufficient merit to warrant discussion in our written opinion.

Affirmed.

1 To maintain clarity in our opinion, we distinguish the parties by using their first names.

2 The claims regarding other realty are based on general statements devising property in Evelyn's prior wills, executed in New Jersey. A will executed on June 22, 1992, contained a devise of realty located in "New Providence, Nassau, Bahamas." A will executed on March 2, 2005, devised property in Bermuda to Hunter and Jeffrey. Notably, subsequent wills do not reference these properties and no information about them was forthcoming.

3 The Probate judge also concluded principles of comity require she defer to the first filed Anguilla matter. Jeffrey challenges that determination suggesting he first filed a complaint in New Jersey, the issues in the two actions are not identical, and special equities should prevent dismissal of the New Jersey matter. We conclude these issues lack merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E).