IN THE MATTER OF THE ESTATE OF KEVIN B. MALONE

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-06147-12T2

IN THE MATTER OF THE ESTATE OF

KEVIN B. MALONE,

Deceased.

________________________________________________________________

November 6, 2014

 

Submitted1 October 15, 2014 Decided

Before Judges Reisner, Koblitz and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. P-322-12.

Kevin C. Malone, appellant pro se.

Greenbaum, Rowe, Smith & Davis, LLP, attorneys for respondent (Gary K. Wolinetz, on the brief).

PER CURIAM

Caveator Kevin C. Malone (the son) appeals from the July 5, 2013 order granting summary judgment to Adrian Dawes, the Administrator, C.T.A.2 of the Estate of Kevin B. Malone, who sought: (1) to lift a caveat filed by the son, decedent Kevin B. Malone's only child, with respect to decedent's last will dated August 15, 2008, and thereby have the will admitted to probate; and (2) to have himself appointed temporary administrator of decedent's estate, the executor and successor executor named in the will having both renounced their appointments. The son also appeals from theMarch 28, 2013 order denying his request for will contest expenses pursuant to N.J.S.A. 3B:3-30, as well as the portion of the May 13, 2013 order denying the son's application to amend his counterclaim to add "Mistake in the Inducement." After reviewing the record in light of the contentions advanced on appeal, we affirm.

The family history is not contested. Malone, originally from Nottingham, U.K., was a World War II veteran who served in the Royal Air Force (RAF) as a mechanic. He came to the United States in 1950 and became financially successful. Although serving in the RAF denied Malone the opportunity to attend college, he was particularly interested in helping underprivileged students attend British universities. In 2002, after contacting the University of Oxford, Malone made his first educational donation of $500,000 to that university, which is located in Nottingham. This generous gift was widely publicized in the British media, leading the University of Nottingham to contact Malone.

Thereafter, in October 2002, Malone created the Ethel & Kevin B. Malone Scholarship Fund at the University of Nottingham (Malone Scholarships). Malone gave the following handwritten instructions to the University of Nottingham about how to administer the Malone Scholarships,

There will be no debt incurred by acceptance of a scholarship, but it is to be hoped that recipients will appreciate this assistance in the distant future and if they have succeeded enough to reciprocate by donating to the Malone fund if it is still in existence [ ] would enjoy the feeling of helping some young person in need of the fund. If the fund has ceased to exist as will I have, there will be others!

Malone gave a total of $660,144 to Friends of the University of Nottingham: American, Inc. (FUN)3 from 2002 to 2008: (1) $10,000 in 2002; (2) $225,000 in 2003; (3) $225,000 in 2004; (4) $100,144 in 2006; and (5) $100,000 in 2008. In July 2003, Malone was inducted into the University of Nottingham's College of Benefactors because of his generosity to the university. From 2002 to 2009, Malone visited the University of Nottingham almost every year to remain personally involved with the Malone Scholarships by meeting with student recipients. Thus, Malone gave as gifts to the University of Oxford and the University of Nottingham, at a minimum, $1,160,144 before his death.

The son is an indigent Buddhist monk residing in Maine who has spent the last twenty years engaged in prison chaplaincy while authoring the leading prison chaplaincy manual. Unlike his father, the son was a conscientious objector.

From 1997 to February 2002, the son and his children were beneficiaries of both Malone's and his wife's wills. The son wrote a letter in January 2002 that was published on an internet blog, describing poor treatment the son received while attending a Catholic high school in 1960. The son claims Malone, a devout Catholic, changed his will because he did not believe the contents of the letter. Malone changed his will thirty-two days after the letter's publication. The son conceded, however, that his father told him approximately two years before the letter was written that he was not going to receive an inheritance.

The son also alleged that Malone lacked testamentary capacity to execute the August 15, 2008 will and, in addition, that the will was the product of undue influence.4 The son acknowledged that he has no medical documentation that his father was suffering from any mental illness, including dementia, when the final will was signed in 2008. On October 15, 2010, however, at the age of eighty-eight, Malone was adjudged incapacitated and the Office of the Public Guardian for Elderly Adults, New Jersey Department of Health, was appointed Malone's guardian. Evelyn Pergola, the assigned social worker for the Public Guardian, evaluated Malone and stated in a phone conversation with the son in November 2010 that, based on her investigation, she thought Malone had been suffering from dementia "for a long time[,]" even as far back as when the son was a teenager.

The son also presented a certification from a retired pharmacist, Stacey Leveque, who is on the board of the son's religious foundation, purporting to diagnose Malone after visiting him on one occasion in 2000. Leveque opined that Malone was "suffering from undiagnosed psychosis and possibly schizophrenia with both negative and psychotic indications, which remained untreated during his life."

The son had no contact of any kind with his father after 2004. The son stated that he wrote his father letters a few times, but never received a reply. On December 30, 2011, Malone died alone. Neither the son nor any other family members attended his funeral.

According to the son, prior to the death of his mother in 2001, his parents had reciprocal wills. After the death of his wife, Malone changed his will five times: (1) February 21, 2002 (the first will); (2) November 3, 2003 (the second will); (3) January 19, 2005 (the third will); (4) May 20, 2008 (the penultimate will); and (5) August 15, 2008 (the final will). The Estate is valued at approximately $2,000,000.

In the first will, Malone made the following bequests: (1) $5000 to the son; (2) $5000 to his nephew; (3) $10,000 to a local pastor; and (4) the residuary of his estate to the Ethel M. and Kevin B. Malone Family Foundation (Foundation), a trust that operated solely to benefit Americans for Oxford, Inc. (Oxford).5

The second will included the same bequest of $10,000 to the pastor and $5000 to the son, but the nephew was removed and the residuary of the estate went to the Foundation for the benefit of both FUN and Oxford.

The third will included the same bequest of $10,000 to the pastor and $5000 to the son, but the entire residuary of the estate went to the Foundation, which now operated exclusively to benefit FUN. The third will was replaced with the penultimate will, which changed only the executors of the will.

The final will changed the residuary beneficiary to FUN directly and added an in terrorem clause as Article VIII stating, "If any beneficiary in any manner, directly or indirectly, contests this Will or any of its provisions, any interest in my estate given to the beneficiary is revoked and shall be disposed of in the same manner as if the beneficiary had predeceased me."

On September 22, 2012, Presiding Chancery Judge Robert P. Contillo granted the application of Adrian Dawes, a local resident and graduate of the University of Nottingham, to be temporary Administrator C.T.A.

The son raises the following issues on appeal

I. THE COURT BELOW ERRED BY FINDING THAT PLAINTIFF ADRIAN DAWES, AN ADMITTED STRANGER TO THE CONTROVERSY, NEVERTHELESS HAD STANDING TO SUE AS PARTY PLAINTIFF BY VIRTUE OF HIS HAVING BEEN APPOINTED TEMPORARY ADMINISTRATOR.

A. STANDING IS A THRESHOLD MATTER OF JUSTICIABILITY THE ELEMENTS OF WHICH MUST BE ESTABLISHED IN ORDER TO PURSUE A CIVIL ACTION.

1. STANDING REQUIRES ADVERSENESS AND A REAL STAKE IN THE OUTCOME.

2. A WILL CONTEST PLAINTIFF IN A CIVIL ACTION IN THE SUPERIOR COURT IS SUBJECT TO A STANDING ANALYSIS.

B. STANDING IS A THRESHOLD ISSUE INVOLVING THE COURT'S POWER TO HEAR A CASE AND MAY NOT BE WAIVED.

C. IT IS UNDISPUTED THAT AT THE TIME PLAINTIFF FILED THE COMPLAINT IN THIS ACTION, PLAINTIFF WAS (AND IS) WITHOUT ANY FINANCIAL STAKE IN THE OUTCOME, FATALLY UNDERMINING HIS STANDING AB INITIO TO PROSECUTE THIS WILL CONTEST.

D. PLAINTIFF DAWES IS NOT A REAL PARTY IN INTEREST.

E. PLAINTIFF'S APPOINTMENT AS TEMPORARY ADMINISTRATOR DOES NOT EXEMPT HIM FROM THE REQUIREMENT OF ESTABLISHING STANDING TO SUE AS A PARTY PLAINTIFF.

1. A TEMPORARY ADMINISTRATOR IS SUBJECT TO A STANDING ANALYSIS JUST LIKE EVERY OTHER PARTY ASSERTING CLAIMS IN A CIVIL ACTION.

2. CAUSES OF ACTION ASSERTED BY A FIDUCIARY ON BEHALF OF THE REAL PARTY IN INTEREST ARE NECESSARILY LIMITED TO THOSE CLAIMS IN WHICH THE REAL PROPERTY IN INTEREST HAS A COGNIZABLE INTEREST.

3. THAT MR. DAWES IS A MEMBER OF THE FUN BOARD OF DIRECTORS IS IRRELEVANT TO WHETHER HE HAS STANDING TO MAINTAIN THIS WILL CONTEST.

A. NEW YORK CORPORATIONS LAW GOVERNS THE POWERS OF DIRECTORS OF NEW YORK CORPORATIONS AND PROVIDES NO AUTHORITY FOR A DIRECTOR TO SUE ON BEHALF OF THE CORPORATION IN THIS CASE.

B. WHETHER THE FUN BOARD APPROVES HIS APPOINTMENT AS TEMPORARY ADMINISTRATOR IS IRRELEVANT TO ESTABLISH STANDING.

II. THE COURT BELOW ERRED BY DENYING CAVEATOR'S MOTION FOR AN ALLOWANCE FOR WILL CONTEST EXPENSES AS PERMITTED BY N.J.S.A. 3B:3-30.

A. N.J.S.A. 3B:3-30 APPLIES TO ADULT CHILDREN WITHOUT REGARD TO WHETHER AN AWARD OF LITIGATION EXPENSES WILL BE REPAID.

B. THE APPLICABLE STANDARD FOR AN ALLOWANCE FOR WILL CONTEST EXPENSES UNDER N.J.S.A. 3B:3-30 IS "NECESSITY" AND ESTABLISHING "LIKELIHOOD OF SUCCESS ON THE MERITS" IS NOT A REQUIREMENT.

1. NECESSITY IS THE OVERRIDING CONDITION UNDER N.J.S.A. 3B:3-30.

2. LIKELIHOOD OF ULTIMATE SUCCESS NEED NOT BE ESTABLISHED.

3. EVEN IF SOME ANALYSIS OF THE MERITS WERE WARRANTED, THE RECORD EVIDENCE SUPPORTS THE LITIGATION ENVISIONED BY THE COURT IN THROPP.

A. SOCIAL WORKER EVELYN PERGOLA'S ASSESSMENT OF DECEDENT'S DEMENTIA.

B. STACEY LEVEQUE'S OBSERVATION THAT DECEDENT WAS SUFFERING PSYCHOTIC MENTAL ILLNESS AND/OR DEMENTIA STANDS UNCONTROVERTED.

4. INTERESTS OF JUSTICE FAVOR CAVEATOR REPRESENTATION.

III. THE COURT BELOW ERRED BY GRANTING SUMMARY JUDGMENT DISMISSING CAVEATOR'S COUNTERCLAIM OF LACK OF CAPACITY DESPITE UNCONTROVERTED PROBATIVE EVIDENCE OF DECEDENT'S LONGSTANDING UNDIAGNOSED MENTAL ILLNESS.

A. UNDER THE APPLICABLE SUMMARY JUDGMENT STANDARD THE COURT MAY NOT DISREGARD UNCONTROVERTED EVIDENCE OF INCAPACITY OR ENGAGE IN CREDIBILITY DETERMINATIONS.

IV. THE COURT BELOW ERRED BY REFUSING TO PERMIT CAVEATOR TO AMEND HIS COUNTERCLAIMS TO INCLUDE A CAUSE OF ACTION FOR MISTAKE IN THE INDUCEMENT HOLDING THAT DESPITE THE RECORD EVIDENCE OF TESTATOR'S POSSIBLE MISTAKEN BELIEF, NEW JERSEY DOES NOT RECOGNIZE SUCH A CLAIM UNDER THE CIRCUMSTANCES PRESENTED IN THIS CASE.

A. CAVEATOR PLEADS A CAUSE OF ACTION FOR MISTAKE IN THE INDUCEMENT SUPPORTED BY THE RECORD FACTS.

I

The son argues that Dawes, a member of the board of FUN, lacked standing because he has no personal interest or stake in the outcome of this action. Pursuant to N.J.S.A. 3B:10-15, however, any fit person may fill the office vacated by an executor and shall serve as Administrator C.T.A. Specifically, N.J.S.A. 3B:10-15 states,

When a sole or sole surviving or remaining executor or administrator, with or without the will annexed, dies or is removed or discharged by the court after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall, except as hereinafter provided, be filled by the appointment of a fit person to exercise the vacated office. The person so appointed shall be nominated substituted administrator with the will annexed or substituted administrator, as the case may be.

Malone died on December 30, 2011, and on February 12, 2012, the executor and successor executor named in the final will filed separate renunciations of executorship, leaving no one to administer Malone's estate. N.J.S.A. 3B:10-15 explicitly grants the court the authority to appoint a temporary administrator. On August 21, 2012, Dawes filed the complaint seeking to be named administrator. After being appointed temporary administrator in September 2012, it was Dawes' obligation to see that the will was admitted to probate and his obligation to defend it. Ellicott v. Chamberlin, 38 N.J. Eq. 604, 611 (E. & A. 1884) (stating that if an executor knows of a will, he has a duty to probate it). We therefore reject the son's contention that Dawes lacked standing to serve as the administrator.

II

The son also argues that he should have been provided with an allowance for will contest expenses as permitted by N.J.S.A. 3B:3-30, based on his financial need without regard to the merits of his position.

N.J.S.A 3B:3-30 states in pertinent part

If a contest is pending over the probate of any paper purporting to be a will, the Superior Court may, on application by the widow or widower of the decedent, by any of decedent's children, or by any children of any of decedent's deceased children, order the person having the custody of the decedent's estate to pay out of the income of the estate, pending the contest, an allowance for the support and maintenance of the widow, widower, child or children as the court may deem just; and any further allowance out of the income, or, if need be, out of the corpus, of the estate as may be necessary to meet the expenses incurred or to be incurred in conducting the contest.

In support of his position the son relies on In re Thropp's Will, 12 N.J. Super. 444 (Cty. Ct. 1951).6 In the course of denying will contest expenses to a minor child because no need existed, County Court Judge Newman stated

It therefore becomes incumbent upon the petitioner here to establish the following

First -- The petitioner must establish that he has reasonable grounds for contesting the will;

Second -- That the infant would gain as a result of setting aside the contested will, and

Third -- That the child is in need of funds for her support and maintenance and probably further in need of funds for the contesting of the will.

[Id. at 446.]

Thus, Thropp does not support the proposition that a need for litigation fees is the sole criterion, as the first requirement is to establish "reasonable grounds for contesting the will[.]" Ibid. Because the award of counsel fees reduces the Estate, judges may exercise their discretion to deny such an application. In re Estate of Phillops, 139 N.J. Eq. 557, 558 (E. & A. 1947) (explaining that pursuant to former N.J.S.A. 3:2-29 (now N.J.S.A. 3B:3-30), it should be "sparingly exercised [and] only in cases of prove[n] necessity"); In re Estate of Phillips, 138 N.J. Eq. 96, 97 (Prerog. Ct. 1946), aff'd, 139 N.J. Eq. 557 (E. & A. 1948) ("The statute is one in derogation of common law and must be strictly construed.").

We note additionally that another reason Judge Newman denied the request was that even if the final will were set aside, the minor would receive the same legacy under a prior will. Thropp's Will, supra, 12 N.J. Super. at 448. In this case, the court would have to set aside five wills, all written by Malone's personal attorney, before the son could obtain the residuary of his father's estate. Judge Contillo did not abuse his discretion when he denied will contest expenses, finding "no demonstrated merit to the claims that are being made by a long-estranged, emancipated, never-supported child."

III

The son urges us to reverse Judge Contillo's grant of summary judgment to Dawes. Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). "Summary judgment must be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014) (citations and internal quotation marks omitted). Thus we consider, as the motion judge did, 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.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008) (citation omitted). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas, supra, 213 N.J. at 478.

"[A] court's duty in probate matters is 'to ascertain and give effect to the probable intention of the testator.'" In re Probate of Will & Codicil of Macool, 416 N.J. Super. 298, 307 (App. Div. 2010) (quoting Fid. Union Trust Co. v. Robert, 36 N.J. 561, 564 (1962)). "In attempting to determine the probable intent of the testator . . . courts must consider the entirety of the will in light of the circumstances surrounding the execution of the will." In re Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005) (citation omitted). Courts must put themselves in the testator's position and attempt to do what the testator "would have done had he envisioned the present inquiry." Ibid. (citation and internal quotation marks omitted). In this regard, extrinsic evidence may be used when looking at probable intent. Ibid.

The burden of establishing lack of testamentary capacity is on the one who contests the will being offered for probate. This "burden must be sustained by clear and convincing evidence." In re Estate of Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952), certif. denied, 11 N.J. 211 (1953). Furthermore, the caveator must establish lack of capacity at the time the will was executed. In re Livingston's Will, 5 N.J. 65, 76 (1950) (citation omitted); In re Estate of Strittmater, 140 N.J. Eq. 94, 95 (E. & A. 1947).

In support of his claim that Malone lacked capacity, the son presented the lay opinions of a social worker who did not see Malone until two years after he signed the final will and a pharmacist who saw Malone on one occasion. This evidence was clearly insufficient to even raise the issue that Malone did not have sufficient capacity to "comprehend the property he is about to dispose; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to others, and the distribution that is made by the will." In re Will of Liebl, 260 N.J. Super. 519, 524 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993) (citations omitted).

IV

Finally, the son argues that Judge Contillo erred in denying his request to add the claim of "Mistake in the Inducement." Mistake in the inducement may exist when a testator is influenced to execute a will based on an inaccurate belief as to an essential fact, such as the death of a beneficiary who is in fact alive. See In re Araneo Will, 211 N.J. Super. 456, 461 (Law Div. 1985), aff'd, 213 N.J. Super. 116 (App. Div.), certif. denied, 107 N.J. 62 (1986) (applying N.J.S.A. 3B:5-16(c), which mandates that if a decedent fails to provide for a child solely because of a mistaken belief that the child is dead, the child may be entitled to a share of the estate).

The son argues that Malone changed his will because he mistakenly thought that the son falsely alleged mistreatment while at a Catholic high school. This claimed motivation based on a mistake is pure speculation on the son's part, especially given that Malone told the son years before that he would not receive an inheritance. In any event, an improper motivation does not invalidate a will. "A court cannot pass upon either the wisdom or fairness of a will's provisions so long as it was validly executed and it is not illegal or offensive to public policy." Ibid. (citing In re Blake's Will, 21 N.J. 50, 57 (1956); see also In re Petkos, 54 N.J. Super. 118, 128 (App. Div.), certif. denied, 30 N.J. 150 (1959) ("Any repugnance the court may feel at the unnaturalness of the testament cannot be permitted to influence it to frustrate the testator's legal right to dispose of his property as he willed.").

Any other issues raised by the son that we have failed to address are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Contillo carefully reviewed the evidence in a light most favorable to the son and found no basis to allow the amendment to the counterclaim, nor any rational basis for finding in favor of the son. As well as the reasons set forth, we also affirm on the basis of the cogent reasons set forth in Judge Contillo's comprehensive oral opinions of May 3 and July 5, 2013.

Affirmed.


1 After initially requesting oral argument, both parties withdrew their requests and submitted on the briefs.

2 An Administrator Cum Testamento Annexo is defined as "[a]n administrator appointed by the court to carry out the provisions of a will when the testator has named no executor, or the executors named refuse, are incompetent to act, or have died before performing their duties and no qualified successor has been named." Black's Law Dictionary 54 (10th ed. 2014).

3 FUN is a 26 U.S.C.A. 501(c)(3) charity and a United States-based entity that channeled Malone's donations to the Malone Scholarships.

4 The issue of undue influence is not before us as the son did not raise it in his appeal. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").

5 Oxford provides scholarships for financially needy students attending the University of Oxford.

6 In Thropp's Will the judge applied the predecessor statute, N.J.S.A. 3:2-29, which is virtually identical to N.J.S.A. 3B:3-30.