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Argued June 7, 2016 Decided August 12, 2016

Before Judges Yannotti, St. John, and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. CP-195-14.

Lawrence B. Litwin argued the cause for appellants Stacy Marie Wolin, Erica Wolin, Jennifer Wolin and Stacy Marie Wolin, as guardian ad litem for Brett Wolin.

Patrick J. Madden argued the cause for respondent Estate of Kenneth E. Jameson (Madden & Madden, P.A., attorneys; Mr. Madden, of counsel and on the brief; Regina M. Philipps, on the brief).

Marc Krefetz, Deputy Attorney General, argued the cause for respondent Acting Attorney General of New Jersey (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Krefetz, on the brief).

James Driscoll, attorney for respondent Hospitaller Brothers of St. John of God Community Services, joins in the brief of respondent Estate of Kenneth E. Jameson.


Plaintiffs Stacy Marie Wolin (Stacy), her daughters Erica Wolin and Jennifer Wolin, and Stacy as guardian ad litem for her son Brett Wolin, appeal a December 16, 2014 Chancery Division order dismissing their Amended Verified Complaint (complaint) with prejudice in accordance with Rule 4:6-2(e). We affirm.


Because plaintiffs appeal an order dismissing the complaint pursuant to Rule 4:6-2(e), we limit our summary of the facts to those alleged in the complaint, which we accept as true for purposes of our analysis of plaintiffs' arguments. Stacy is the sole surviving daughter of Yvonne Jameson (Yvonne), who died on January 4, 2011, and Kenneth Jameson (Kenneth), who died on April 18, 2014. Stacy's sister, Lisa, suffered from physical and learning disabilities and died in 1966 at age eight.

Stacy enrolled in college in 1982 and began dating Marc Wolin (Marc), a person of the Jewish faith. After telling her parents that she was dating Marc, Stacy's parents allegedly forbade her from talking, socializing, and having any contact with him because he was Jewish.

Stacy initially abided by her parents' instructions, but then began dating Marc. Upon returning home after her first semester at college, she advised her parents that she had resumed her friendship with Marc. In response, Stacy's parents took her to a Y.M.C.A. in Philadelphia and told her that she must stay there and get a job.

After a few days, Stacy asked for permission to return home. Kenneth would not permit her to return because Yvonne was opposed. Without Yvonne's knowledge, Kenneth arranged for Stacy to stay at the home of family friends.

Stacy's parents eventually permitted her to return home, but were not inclined to permit her to return to college. According to the complaint, Yvonne told her that if she had known how many Jewish students attended the college, she would not have permitted Stacy to attend in the first instance. Her parents permitted her to return to the college to go to class, the cafeteria, and the library.

Toward the end of her second semester, Stacy informed her parents that she was dating Marc. Her parents refused to let her return home and said she was not welcome at their home. During the summer after her first year of college, Stacy lived with her cousin.

At the conclusion of the summer, Stacy returned to her college, but could not enroll because she did not have sufficient funds. She applied for financial aid, but did not qualify because her parents had the financial ability to pay, and the college did not accept that Stacy had become independent of her parents.

Professors at the college assisted Stacy in finding different jobs on the campus and contacted the financial aid office to investigate the steps required for Stacy to obtain financial assistance. During this time, Stacy's parents sometimes visited her at college, but their attitude toward Stacy's relationship with Marc did not change. Plaintiffs claim that during one visit, Kenneth "backhanded [her] hard enough to give [her] a black eye" and on another occasion Kenneth "threatened to physically harm Marc."

Ultimately, Stacy returned to school, paying her own way through student loans and financial aid, and graduated in 1987. Stacy did not return home during school breaks, but instead often stayed at Marc's home, where she met his parents and family.

On one occasion, Kenneth allegedly confronted the rabbi at the temple where Marc's family worshipped. Plaintiff's claim that Marc's father went to the temple, where Kenneth told him that the "Wolins were trying, among other things, to brainwash" Stacy.

In April 1987, Stacy's parents executed separate Last Wills and Testaments.1 Kenneth's will devised his entire estate to his wife, Yvonne. In the event that Yvonne predeceased Kenneth, his estate was to pass to Hospitaller Brothers of St. John of God Community Services (Hospitaller), "to be used by them for the special education and rehabilitation of the mentally and physically handicapped" at their facilities in Southern New Jersey. If Hospitaller did not exist or offer appropriate services at the time of Kenneth's death, his estate would pass to the Roman Catholic Diocese of Camden, New Jersey for it to use "as nearly as possible for the intentions expressed herein, that is, for the special education and rehabilitation of the mentally and physically handicapped."

Article Four of Kenneth's will stated that "[n]o part of [his] estate is at any time to be gifted, bequeathed, or devised to [his] daughter," Stacy. Article Four further stated as follows

As an extremely loving and devoted parent, I found that the love, care and concern which I lavished on my daughter was not acknowledged or returned in any way by my daughter. Instead, she acted toward me with selfishness, manipulation, cruelty, and with abusiveness. My daughter . . . blatantly lied to and about me, acted with hatefulness and vindictiveness towards me, and was abusive and physically violent towards me. [Stacy's] shameful and hateful behavior towards me and her mother has brought me to my carefully considered decision that [Stacy] is to receive absolutely nothing from my estate.

Upon her graduation from college in 1987, and following her parents' execution of their respective wills, Stacy became close with Marc's family and observed many Jewish holidays with them. A year after her graduation, Marc bought a home and Stacy moved in with him. They married in 1990. Stacy attended a comprehensive Judaism course prior to their marriage, but did not convert to Judaism. Stacy's parents were invited to their wedding, but Kenneth allegedly told Marc that "they would not attend the wedding because they would never endorse their daughter marrying a Jew."

Stacy and Marc have three children. She and Marc agreed their children would be raised in the "Jewish Tradition." Kenneth refused to meet his grandchildren and his will makes no mention of them.

Through the time Stacy and Marc were married, her "parents' hostility was more frequently evidenced by [her] mother, who appeared to suffer from emotional difficulties as a result of the death of [Stacy's] sister, and . . . inability to have more children." Yvonne allegedly had a "powerful influence over" Kenneth, who "desired to please" Yvonne and would do "whatever [Yvonne] instructed him to do."2

Following Kenneth's death in April 2014, his will was admitted into the Chancery Division, Probate Part, and Stacy was provided with a copy of the will. Plaintiffs filed a complaint against Kenneth's estate3 claiming in part that the statements contained in Article Four of Kenneth's will are "totally incorrect and completely fabricated." Plaintiffs allege that Stacy was "disowned solely because [she] was dating Marc, who happened to be Jewish" and that Stacy was never "selfish, manipulative, cruel and abusive toward her parents" and "never violent or hateful toward her father."

The complaint alleged that Kenneth's will was invalid because it was the product of undue influence (count one) and religious discrimination (count two), did not express a clear intent to disinherit his grandchildren (count three), and was libelous as to Stacy (count four).4 In response to the complaint, Kenneth's estate filed a motion to dismiss for failure to state a claim pursuant to Rule 4:6-2(e).

On December 16, 2014, the court heard argument, granted the estate's motion for reasons set forth in an oral opinion, and entered an order dismissing the complaint. This appeal followed.


In our consideration of a "trial court's decision to dismiss a complaint under Rule 4:6-2(e), we apply the same standard but our review is de novo." Teamsters Local 97 v. State, 434 N.J. Super. 393, 413 (App. Div. 2014) (citing Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011)). The standard "requires an assumption that the allegations of the pleading are true and affords the pleader all reasonable factual inferences." Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002) (citing Indep. Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956)). The court must search the pleading "in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement." Ibid. (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).

To avoid a dismissal for failure to state a claim, a plaintiff is not required "to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.) (quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001)), certif. denied, 185 N.J. 297 (2005). "However, a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief." Ibid.; see also Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011) ("A pleading should be dismissed if it states no basis for relief and discovery would not provide one.").


Plaintiffs first argue that the court erred by dismissing count one, which alleged that Kenneth's will should be set aside because it was the product of Yvonne's "undue influence." We disagree.

A decedent's bequest may be overturned if it is proven to be the product of undue influence. Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981).

[U]ndue influence is a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets, generally by means of a will or inter vivos transfer in lieu thereof.

[In re Estate of Stockdale, 196 N.J. 275, 302-03 (2008) (citing Haynes, supra, 87 N.J. at 176).]

"It denotes conduct that causes the testator to accept the 'domination and influence of another' rather than follow his or her own wishes." Id. at 303 (quoting Haynes, supra, 87 N.J. at 176).

"Persuasion or suggestions or the possession of influence and the opportunity to exert it, will not suffice" to establish undue influence. In re Will & Testament of Liebl, 260 N.J. Super. 519, 528 (App. Div. 1992) (quoting In re Livingston's Will, 5 N.J. 65, 73 (1950)). The influence must be such that it destroys the testator's free agency and causes him to dispose of his property not by his own desires, but instead by the will of another, which the testator is unable to overcome. Ibid.

Measured against this standard, we are convinced the court correctly concluded that the allegations in count one of the complaint do not set forth a cognizable claim of undue influence. Plaintiffs allege that Kenneth was under the undue influence of his wife Yvonne because he "would do whatever [Yvonne] wanted him to do" and "desired to please her."

These allegations are, however, insufficient to support a claim of undue influence. Plaintiffs do not allege that Yvonne's requests destroyed Kenneth's ability to dispose of his property in accordance with his own intentions or that his independent will was overcome. Stockdale, supra, 196 N.J. at 302-03. In contrast, plaintiffs allege that Kenneth had the express desire and intention to disinherit Stacy because of her relationship with Marc. That allegation is completely inconsistent with the claim of undue influence.


Plaintiffs also contend that the court erred in dismissing count two of the complaint, which alleged that Kenneth's will must be set aside because it was motivated by his rejection of Stacy's relationship with a man of the Jewish faith. Plaintiffs argue that Kenneth's disinheritance of Stacy violates public policy; the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42; and N.J.S.A. 46:3-23.

It is well established that absent undue influence, the motivation of the testator is not relevant to the validity of a decision to disinherit a putative heir. See, e.g., In re Blake's Will, 21 N.J. 50, 57 (1956) ("If capacity, formal execution, and volition appear, the will of the most impious man must stand, unless there is something not in the motives which led to the disposition, but in the actual disposition, against good morals or against public policy." (quoting Den d. Trumbull v. Gibbons, 22 N.J.L. 117, 153 (Sup. Ct. 1849))).

"A will may be contrary to the principles of justice and humanity; its provisions may be shockingly unnatural and extremely unfair," however, courts are bound to uphold the validity of a will if made by a person of sufficient age to be competent and if made while of sound and unconstrained mind. "[A] will cannot be set aside on account of strong, violent and unjust prejudice of the testator . . . if such prejudice be not founded on delusions and does not show mental incapacity . . . [and] that the unreasonableness of testator's prejudice and unfairness in the disposition of his property will not alone avail the court to repudiate the will."

[Liebl, supra, 260 N.J. Super. at 530 (alterations in original) (citations omitted).]

Even if the disinheritance of Stacy was motivated by Kenneth's alleged rejection of Stacy's relationship with a man of the Jewish faith, the court correctly dismissed count two. Kenneth's alleged motivation for his disinheritance of Stacy does not permit or require the setting aside of his will. Ibid.; In re Petkos's Will, 54 N.J. Super. 118, 128 (App. Div. 1959); In re Araneo's 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). As we noted in Liebl, "[e]ven if decedent had totally disinherited his [putative heir] due to an unreasonable discriminatory prejudice," that is not "a ground to set aside the will." Liebl, supra, 260 N.J. Super. at 531.

We also reject plaintiffs' argument that Kenneth's disinheritance of Stacy, based upon his alleged objection to her relationship with Marc, violates public policy. "The power to dispose of one's property by testament . . . is a long recognized and legislatively protected function having its roots in the 'sacred and inviolable right' of 'absolute dominion' of every man over his own property, subject only to compliance with law and non-interference with public policy." Metzdorf v. Borough of Rumson, 67 N.J. Super. 121, 126 (App. Div. 1961) (citations omitted). A violation of public policy, however, does not result from a testator's motivation for his or her actions, but instead occurs when the testator imposes a condition upon a bequest that violates public policy. Girard Trust Co. v. Schmitz, 129 N.J. Eq. 444, 454 (Ch. 1941); see also Liebl, supra, 260 N.J. Super. at 529 (finding that the testator did not violate public policy where he did not "place[] restrictions or conditions upon the legacy that are contrary to public policy and thus invalid"); In re Blake's Will, supra, 21 N.J. at 57 (finding a will to be valid "unless there is something, not in the motives which led to the disposition, but in the actual disposition, against . . . public policy").

Here, count two of the complaint alleges only that Kenneth's motivation for his disinheritance of Stacy violated public policy. As noted, Kenneth's alleged discriminatory motive does not provide a basis to set aside the will. Moreover, the complaint does not allege that the will imposed any conditions related to Stacy's disinheritance or upon the bequest to Hospitaller that violate public policy. Thus, the court properly dismissed plaintiffs' claim that Kenneth's will should be set aside as violative of public policy.

We also reject defendant's claim that Kenneth's will violates the NJLAD. The NJLAD reflects a strong and clear public policy against religious and other forms of discrimination. Rodriguez v. Raymours Furniture Co., __ N.J. __, __ (2016) (slip op. at 15). It prohibits discrimination in public housing, N.J.S.A. 10:5-9.1, and places of public accommodation, N.J.S.A. 10:5-4; discriminatory employment practices, N.J.S.A. 10:5-12; discrimination in the receipt of public assistance, N.J.S.A. 10:5-12.2; discrimination in land use and housing, N.J.S.A. 10:5-12.5; and other forms of discrimination.

The NJLAD, does not, however, include a provision rendering it unlawful for a testator to disinherit his or her child based upon an alleged discriminatory motive founded upon religion or religious affiliation. Thus, the NJLAD does not regulate the motive for Kenneth's testamentary transfer and has no application here. Cf. Howard Sav. Inst. v. Trs. of Amherst Coll., 61 N.J. Super. 119, 128-29 (Ch. Div. 1960) (finding no violation of the NJLAD or public policy in a testamentary trust which selected student beneficiaries at a private institution based on religion and national origin), aff'd, 34 N.J. 494 (1961).

Similarly, defendant's contention that the will violates N.J.S.A. 46:3-23 is without merit. The statute makes void "[a]ny promise, covenant or restriction in a contract, mortgage, lease, deed or conveyance or in any other agreement affecting real property" that restricts "the sale, grant, gift, transfer, . . . [or] conveyance . . . of real property to or by any person because of race, creed, color, national origin, ancestry, marital status or sex." N.J.S.A. 46:3-23. Kenneth's will is not a contract or other agreement, and even if it was, it does not include any restriction on the transfer of real property. We are therefore convinced that the statute does not make void either Kenneth's disinheritance of Stacy or the bequest of his estate to Hospitaller.


Plaintiffs next contend that the court erred in dismissing count three of the complaint alleging libel by will based on its finding that our courts have never recognized the cause of action. Plaintiffs alleged that Article Four of the will was defamatory as to Stacy, and that the defamatory statements were published by the estate following Kenneth's death by admitting the will in the Surrogate's Court, thereby causing damage to Stacy's reputation.

Plaintiffs acknowledge there is no New Jersey case in which a cause of action for libel by will has been recognized. They argue that we should recognize the cause of action under the circumstances presented here. For the reasons that follow, it is unnecessary for us to do so.

Libel occurs if a defendant makes "[a] defamatory statement . . . that is false and 'injurious to the reputation of another' or exposes another person to 'hatred, contempt or ridicule' or subjects another to 'a loss of the good will and confidence' in which he or she is held by others." Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 168 (App. Div. 2010) (quoting Romaine v. Kallinger, 109 N.J. 282, 289 (1988)), aff'd in part, 206 N.J. 209 (2011).

A cause of action for libel arises with the publication of the alleged libel. See N.J.S.A. 2A:14-3 ("Every action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander."); Churchill v. State, 378 N.J. Super. 471, 478 (App. Div. 2005) ("[A] plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel . . . ."). Plaintiffs do not allege that Kenneth published any defamatory statements regarding Stacy during his lifetime. Instead, they allege that the libel occurred when the estate published the will following Kenneth's death by admitting it to the Surrogate's Court.

Executors have a duty to admit a will for probate. See In re Reisdorf, 80 N.J. 319, 324 (1979) ("[I]n offering the will for probate, he is but fulfilling his duty as an executor."); Ellicott v. Chamberlin, 38 N.J. Eq. 604, 611 (E & A 1884) (stating it was the duty of the executor to "proceed with the settlement of the estate"). Here, the executor admitted the will to the Surrogate's Court on behalf of the estate in fulfillment of his legal duty and obligation.

As a defense to claims of libel, there is an absolute privilege for "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Hill v. N.J. Dep't of Corr. Comm'r Fauver, 342 N.J. Super. 273, 295 (App. Div. 2001) (quoting Hawkins v. Harris, 141 N.J. 207, 216 (1995)), certif. denied, 171 N.J. 338 (2002). "The litigation privilege is not limited to statements made in a courtroom during a trial; 'it extends to all statements or communications in connection with the judicial proceeding.'" Hawkins, supra, 141 N.J. at 216 (quoting Ruberton v. Gabage, 280 N.J. Super. 125, 133 (App. Div.), certif. denied, 142 N.J. 451 (1995)). Statements made in preparation for judicial and quasi-judicial proceedings are also privileged. Hill, supra, 342 N.J. Super. at 294-95.

For libelous statements to be covered by the litigation privilege, they must be relevant to the proceedings in some way. Id. at 218-19. "Relevancy usually is interpreted liberally so that the speaker does not act 'at his peril.'" Williams v. Kenney, 379 N.J. Super. 118, 137 (App. Div.) (quoting DeVivo v. Ascher, 228 N.J. Super. 453, 460-61 (App. Div. 1988), certif. denied, 114 N.J. 482 (1989)), certif. denied, 185 N.J. 296 (2005). "[J]udges, attorneys, witnesses, parties and jurors are fully protected against defamation actions based on utterances made in the course of the judicial proceedings and having some relation thereto." Rainier's Dairies v. Raritan Valley Farms, 19 N.J. 552, 558 (1955). So long as they have some relation to the judicial proceeding, "[a]n absolute privilege may be extended to statements made in the course of judicial proceedings even if the words are written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed." DeVivo, supra, 228 N.J. Super. at 457.

Although plaintiffs urge our recognition of the cause of action for libel by will, they acknowledge that the litigation privilege, if applicable, bars the putative cause of action alleged in count four of the complaint. They argue, however, that the statements in the will should not be subject to the litigation privilege and urge us to follow the decision of a New York trial court in Brown v. Mack, 56 N.Y.S.2d 910 (Sup. Ct. 1945).

Under the circumstances presented in Brown, the court recognized a cause of action for libel by will against the decedent's estate. The court found that, while a testator's reasons for disinheritance "are frequently important in a probate proceeding," the estate cannot claim an absolute privilege for libelous language and must instead defend against such a claim. Id. at 917.

We are not persuaded the reasoning of Brown and decline to follow it because it is inconsistent with New Jersey's well established absolute litigation privilege. We find it unnecessary under the circumstances presented here to determine if libel by will should be recognized as a cause of action, and reject the reasoning of the court in Brown. The estate here published the alleged defamatory statements when it admitted the will into the Surrogate's Court. Thus, even if there was a cause of action for libel by will, plaintiffs' claim would be barred by the absolute litigation privilege.

The alleged defamatory statements explain Kenneth's motivation for the disinheritance of his only surviving child and were manifestly relevant to the proceeding before the Surrogate's Court. They provide an explanation for his disinheritance of Stacy wholly unrelated to Stacy's relationship with Marc. Thus, the statements are relevant to the judicial proceedings because they are inconsistent with Stacy's claim that the will should be set aside because of her relationship with Marc.

Based upon the allegations in the complaint and the content of Kenneth's will, we do not discern any reason to reject application of the absolute litigation privilege to plaintiffs' putative libel by will claim. See, e.g., Binder v. Oregon Bank, 284 Ore. 89, 92-93, 585 P.2d 655, 656-57 (1978) (affirming dismissal of a cause of action for libel by will because the alleged defamatory statements were published in a judicial proceeding and were therefore absolutely privileged). Based upon plaintiffs' allegations, we are satisfied that the purported defamatory statements were published by the estate during judicial proceedings, have significant relevance to those proceedings, and therefore provide the estate with absolute immunity from a defamation claim, including plaintiffs' putative claim for libel by will. Rainier's Dairies, supra, 19 N.J. at 558. The court correctly dismissed count three of the complaint.


We also find no merit to plaintiffs' assertion that the court erred by dismissing count four of the complaint, which alleged that the will was unduly vague because Kenneth knew he had grandchildren and he omitted reference to them in the will.

There is nothing vague about Kenneth's will. It is unambiguous and unequivocal. It provides that if Yvonne predeceased him, Stacy was not to receive any portion of his estate, and the entirety of his estate was bequeathed to Hospitaller or, if Hospitaller was no longer in existence, to an organization to be identified by the Diocese of Camden that provides services to the mentally and physically handicapped. There is no ambiguity in a will that disposes of the decedent's entire estate. See In re Estate of Gabrellian, 372 N.J. Super. 432, 443 (App. Div. 2004) (finding no ambiguity where "[t]he probated Will indicates the testator's intent that his wife receive his entire residuary estate").

Plaintiffs characterize Kenneth's failure to mention Stacy's grandchildren as an omission, implying that the grandchildren should take under the rules permitting portions of an estate to pass to omitted children. N.J.S.A. 3B:5-16 allows "children born or adopted after the execution of [a] will" to receive a share of the estate. The definition of "child" "excludes any individual who is only a stepchild, a resource family child, a grandchild or any more remote descendant." N.J.S.A. 3B:1-1. By its express terms, the statutory accommodation for omitted children does not apply to Kenneth's grandchildren and there is no similar statutory accommodation for grandchildren.

The court correctly concluded that the will is not ambiguous and its failure to make reference to Stacy's children does not create an ambiguity requiring that the will be set aside. We therefore discern no basis to reverse the court's dismissal of count four.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


1 The will of Yvonne, who predeceased Kenneth by three years, mirrored the testamentary language of Kenneth's will.

2 We note that Stacy's marriage, attendance at the Judaism course, agreement to raise her children in the Jewish tradition, and increased hostility by her parents, and Kenneth's refusal to meet his grandchildren, followed Kenneth's disinheritance of Stacy in his will.

3 The initial paragraph of the complaint reflects that plaintiffs' claims were asserted against Hospitaller, but it is clear from the substance of the allegations that plaintiffs sought to set aside Kenneth's will and to receive an award of damages from the estate. Counsel for the estate and Hospitaller appeared before the trial court and participated in this appeal.

4 Count four also included a claim for damages.

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