IN THE MATTER OF THE ESTATE OF THEODORE A KACZMAREK, Deceased

NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Althoug h it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-1356-17T3

IN THE MATTER OF THE
ESTATE OF THEODORE A.
KACZMAREK, Deceased.
__________________________

                Submitted October 31, 2018 - Decided November 28, 2018

                Before Judges Accurso and Moynihan.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Ocean County, Docket No. 216175.

                Karen Horbatt, appellant pro se.

                Kaplin Stewart Meloff Reiter & Stein, PC, attorneys for
                respondent Denise DeBlasio (Thomas D. Begley, III,
                on the brief).

                Kelaher, Van Dyke & Moriarty, attorneys for
                respondent Barbara Lutz (Peter J. Van Dyke, on the
                brief).

PER CURIAM

      Defendant Karen Horbatt appeals from the entry of summary judgment

admitting decedent Theodore A. Kaczmarek's last will of November 12, 2014 to

probate, directing the Surrogate of Ocean County to issue letters testamentary
to plaintiffs and co-executrices Denise DeBlasio and Barbara Lutz, dismissing

defendant's caveat and counterclaim, and denying her request for counsel fees.

Finding no error in any of the trial court's rulings, we affirm.

      The essential facts are undisputed. Defendant was the decedent's niece by

marriage. After defendant's aunt died, the decedent executed a will in 2009

leaving his entire estate to defendant. At the same time, and at defendant's

suggestion, the decedent executed a revocable living trust agreement,

designating defendant as the sole trustee. Both documents were drafted by a

lawyer procured for the decedent by defendant.          Within a few months of

executing the trust agreement, however, the decedent expressed concern about

losing control of his assets, and defendant suggested he seek advice from

plaintiff DeBlasio, his long-time friend and financial adviser.

      The decedent retained a new lawyer, William Hiering, who drafted a new

will for decedent in February 2010 in which he left the sum of $200,000 to

defendant, provided she did not challenge the will, $250,000 to plaintiff Lutz

and divided the remainder of his estate between DeBlasio and another friend.

Hiering, an experienced estates and trusts lawyer admitted to the bar in 1973,

was not acquainted with the decedent, nor any of the parties, before drawing the

decedent's will in 2010.


                                                                       A-1356-17T3
                                         2
      Hiering testified at deposition that he drew four wills for the decedent, the

first in 2010, the second in 2011, another in 2012 and the last one in 2014.

Relying on notes he took in connection with each of the wills, Hiering recalled

the decedent first came to him expressing a desire to revoke the trust and execute

a new will. The decedent advised Hiering that the decedent's niece, defendant,

was not a blood relative, and that he wished to divide his four million dollar

estate among her and three close friends.        Hiering testified the decedent,

although then ninety-two, was still actively managing his stock portfolio, "day

trading basically and doing very well at it." Hiering testified that after speaking

at length with the decedent in connection with that first will, he had no concern

whatsoever regarding the decedent's competence.

      Hiering further testified his opinion of the decedent's competence never

changed during the time he knew him. The decedent executed three more wills,

altering the amount of his bequests among his beneficiaries and removing first

one friend and then defendant. Specifically as to defendant, the 2011 will

increased her share to eighty-five percent of the estate, the 2012 will reduced it

to fifteen percent and the 2014 last will omitted her entirely. That last will

divided the decedent's entire estate equally between plaintiffs.




                                                                          A-1356-17T3
                                        3
      Regarding execution of that 2014 will, Hiering testified he noticed no

decline in the decedent's mental capacity, describing him as "still . . . sharp.

Pretty old, but he was still sharp." Hiering testified, however, "that physically,

[the decedent] had slowed down." Regarding the decedent's decision to leave

his entire estate to plaintiffs, Hiering testified "he expressed that he had no one

else, that these were people he cared about." The decedent explained that his

third friend had moved away and defendant "is not a relative, it's his wife's

relative."

      Defendant conceded both plaintiffs, who, unlike herself, lived nearby,

assisted the decedent on a regular basis. DeBlasio helped him with his bills and

home repairs and Lutz did his grocery shopping and occasionally his laundry

and both drove him to appointments and provided him companionship.

Defendant claimed, however, that DeBlasio abused her position as the

decedent's financial adviser, that Lutz was motivated by greed and that both

exercised undue influence over him.          She presented an expert report by a

psychiatrist, Daniel P. Greenfield, who opined, on the basis of the decedent's

medical records, that "[i]t is likely that [his] apparent history of several years of

dementia leading up to his death . . . affected his decision-making capacity and

competency" in regard to the 2014 will and "rendered him less able to resist


                                                                            A-1356-17T3
                                         4
'undue influence,' if it actually occurred, notwithstanding characterizations of

him as firm, rigid, set in his ways, knowing what he wanted, and the like."

      Ruling first on plaintiffs' motion to strike the report as a net opinion, see

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,  202 N.J. 369, 384-85 (2010),

Judge Roe acknowledged the expert's qualifications, but concluded his failure

to identify the specific facts in the record on which he based his opinions, see

Townsend v. Pierre,  221 N.J. 36, 53-54 (2015), or to express any opinion held

to a reasonable degree of medical certainty, see Johnesee v. Stop & Shop Cos.,

 174 N.J. Super. 426, 431 (App. Div. 1980), rendered the report unreliable and

inadmissible, see Vuocolo v. Diamond Shamrock Chems. Co.,  240 N.J. Super.
 289, 300 (App. Div. 1990) (explaining "expert testimony is excluded if it is

based merely on unfounded speculation and unquantified possibilities").

      Reviewing the competent evidence on the motion for summary judgment,

Judge Roe concluded there was nothing in the record to support a diagnosis of

dementia until shortly before the decedent's death in 2016, over a year after he

executed his 2014 will. Further, defendant acknowledged at deposition she

"knew nothing of the circumstances surrounding the execution of the 2014 will

or any alleged improprieties" in its genesis or execution, and conceded plaintiffs

were long-time friends of the decedent and appropriate beneficiaries. The judge


                                                                          A-1356-17T3
                                        5
found nothing to contradict attorney Hiering's opinion that the decedent

possessed testamentary capacity when he executed his last will in 2014, and that

defendant's own attempt to have the decedent execute a new power of attorney

in her favor shortly before his death belied her later assertions that the decedent

was incompetent.

      Judge Roe similarly rejected defendant's claims of undue influence as

without support in the record. Acknowledging that plaintiffs enjoyed "a close

personal relationship with the decedent," 1 the judge found nothing in the record

suggesting "questionable or suspicious circumstances" and "certainly . . . no

evidence that they occupied a dominant position over the decedent." Assuming

that defendant had presented sufficient evidence to shift the burden to plaintiffs,

see In re Estate of Stockdale,  196 N.J. 275, 303 (2008), which she did not, the

judge found the record made plain "any influence the plaintiffs had was not

undue," see In re Blake's Will,  21 N.J. 50, 56 (1956) (explaining "influence is

not undue in this regard unless it constitutes moral or physical coercion

destructive of free agency. Even persuasion, much less mere suggestion, is not


1
  Acknowledging that plaintiff DeBlasio had served as the decedent's "financial
adviser," the judge nevertheless rejected defendant's claims of a confidential
relationship because the summary judgment record lacked specific facts
explaining the term, DeBlasio's duties or how the decedent may have relied on
her.
                                                                          A-1356-17T3
                                        6
undue influence either in the legal or the moral sense if freedom of will remains

intact.").

        The judge further found defendant had not presented a prima facie case of

fraud, see Banco Popular N. Am. v. Gandi,  184 N.J. 161, 172-73 (2005), and the

doctrine of unjust enrichment, see EnviroFinance Group, LLC v. Envtl. Barrier

Co., LLC,  440 N.J. Super. 325, 350 (App. Div. 2015), had no applicability to

this will contest. Because defendant failed to provide either the order or the

transcript of the court's oral statement of reasons denying her claim for attorney's

fees, we are unable to assess the merits of her claim, and thus do not consider

it. See Cipala v. Lincoln Tech. Inst.,  179 N.J. 45, 55 (2004) (affirming this

court's refusal to address an issue based on appellant's failure to include

documents necessary for its review in the appendix).

        Having considered defendant's arguments in light of the record and the

applicable law, we affirm in all respects based substantially on Judge Roe's

careful and comprehensive opinion delivered from the bench on October 4,

2017.

        Affirmed.




                                                                           A-1356-17T3
                                         7