IN THE MATTER OF THE ESTATE OF EDNA M. FONE

NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
     Although 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-1738-16T3


IN THE MATTER OF THE ESTATE
OF EDNA M. FONE, Deceased.
_____________________________

             Submitted January 24, 2018 – Decided March 8, 2018

             Before Judges Alvarez and Currier.

             On appeal from Superior Court of New Jersey,
             Chancery Division, Probate Part, Camden
             County, Docket No. P-0057-2010.

             Daniel B. Zonies, attorney             for   appellant
             Richard J. Fone, Jr.

             Simeone   &   Raynor,  LLC,   attorneys   for
             respondent Katherine Fone (Bryan T. Eggert,
             of counsel and on the brief; I. Dominic
             Simeone and Kenneth E. Raynor on the brief).

PER CURIAM

       Edna M. Fone, pre-deceased by her husband, had two children,

Richard J. Fone, Jr., and Katherine Fone.             Her estate has been the

subject of two probate actions. 1          In this appeal, Richard asserts

that the chancery judge erred in dismissing his complaint in which

he sought to admit a 1997 copy of a Will for probate.                 Because we



1
    The same chancery judge presided over both actions.
conclude that Richard was unable to overcome the presumption that

the   absence    of    an   original    will   assumes   its    revocation       or

destruction, we affirm.

      Following Edna's death, when Richard sought to probate a 2009

Will,   Katherine      instituted      suit,   seeking   to    invalidate      the

document, alleging Richard had exerted undue influence over their

mother and that Edna did not have the capacity to execute that

Will.     After a trial, the chancery judge ruled in favor of

Katherine, invalidating the 2009 Will and declaring the Estate

intestate.      Although Richard appealed from that order, he failed

to obtain the trial transcripts and the appeal was dismissed.

      Just prior to the close of trial in the first action, Richard

requested permission to amend his answer to include a counterclaim

to admit a copy of a 1997 Will into probate.                   His motion was

denied.   During the pendency of the first appeal, Richard began a

second action, seeking to probate a copy of a 1997 Will as the

original document could not be found.           Katherine moved to dismiss

the complaint.        On November 21, 2016, the chancery judge granted

the   motion,    finding     that   Richard    was   unable     to    rebut    the

presumption that the 1997 Will had been revoked or destroyed.

      Richard asserts on appeal that the chancery judge should have

permitted him to present evidence in a "full trial" to rebut the

presumption that the 1997 original Will was revoked.                 We disagree.

                                        2                                 A-1738-16T3
       A will that cannot be found after the testatrix's death is

presumed to be destroyed with the intent to revoke "[i]f such a

will was last seen in the custody of the testatrix or she had

access to it."     In re Will of Davis, 
127 N.J. Eq. 55, 57 (E. & A.

1940) (quoting In re Will of Bryan, 
125 N.J. Eq. 471, 473-74 (E.

& A. 1939)).     This presumption of revocation may be rebutted only

with   "clear,    satisfactory   and       convincing"   evidence.     Ibid.

(quoting Bryan, 
125 N.J. Eq. at 474).             "The proof necessary to

rebut the presumption . . . must be sufficient to exclude every

possibility of a destruction of the will by the testatrix herself."

In re Estate of Jensen, 
141 N.J. Eq. 222, 225 (Prerog. Ct. 1947),

aff'd o.b., 
142 N.J. Eq. 242, 243 (E. & A. 1948).            Furthermore,

           [t]o satisfy the . . . clear-and-convincing
           standard, the fact finder "must be persuaded
           that the truth of the contention is 'highly
           probable.'"    Evidence that is clear and
           convincing "should produce in the mind of the
           trier of fact a firm belief or conviction as
           to the truth of the allegations sought to be
           established."

           [In re Perskie, 
207 N.J. 275, 290 (2011)
           (citations omitted) (first quoting McCormick
           on Evidence § 340 (Broun ed., 6th ed. 2006);
           and then quoting In re Purrazella, 
134 N.J.
           228, 240 (1993)).]

       Richard testified during the 2009 Will trial that after his

father died, he searched for his parents' 1997 Wills in a specific

location in their bedroom, but was unable to locate them.                   He


                                       3                             A-1738-16T3
claimed that his parents had disinherited Katherine in those Wills

and she must have taken the documents from their home.             Katherine

denied both knowing anything about her parents' Wills and removing

them from their house.

      In   her   decision    invalidating   the   2009    Will,   the     judge

considered Richard's assertion he now raises in this appeal.                 She

noted that Katherine did not have a relationship with her parents

for many years.        However, before their deaths she reconciled with

them.   The judge stated: "The Court's interpretation of the series

of events is that Katherine and her mother reconciled first, then

Katherine and her father and at some point in time the elderly

couple decided to revoke their existing Wills from 1997 which had

effectively disinherited Katherine."

      The factual findings of the trial court are binding on appeal

if   supported    by    "adequate,   substantial,      credible   evidence."

Cesare v. Cesare, 
154 N.J. 394, 411-12 (1998) (citing Rova Farms

Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J. 474, 484 (1974)). Factual

findings will be disturbed only when it is clear that they are

"manifestly unsupported by or inconsistent with the competent,

relevant   and   reasonably     credible    evidence    as   to   offend     the

interests of justice."          Rova Farms, 
65 N.J. at 484 (quoting

Fagliarone v. Twp. of N. Bergen, 
78 N.J. Super. 154, 155 (App.

Div. 1963)).

                                      4                                 A-1738-16T3
     Richard     has   not   provided   any   credible   evidence   that

"exclude[s] every possibility of a destruction of the will by the

testatrix herself."     Jensen, 
141 N.J. Eq. at 225.      As a result,

he has not met the heavy burden of providing the clear and

convincing evidence necessary to overcome the presumption that the

1997 Will was destroyed.

     Affirmed.




                                    5                           A-1738-16T3