NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-4560-18T3
IN THE MATTER OF THE
ESTATE OF VIRGINIA J.
Submitted March 16, 2020 – Decided May 18, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No. P-
Ferrara Law Group, PC, attorneys for appellant James
Yuhasz (Ralph P. Ferrara and Kevin J. Kotch, of
counsel and on the brief).
Joseph R. Bulman, attorney for respondent David
Virginia J. Ogborne died testate in March 2019. Her last will and
testament, executed on January 11, 2016, left the remainder of her estate in equal
shares to her sons, David and Michael, after nominal specific bequests, including
one in the amount of $1000 to her son, James.1 After James filed a caveat to the
will, David—who was named executor—filed a complaint and order to show
cause (OSC) in a summary action to strike the caveat and admit the will to
probate. James appeals from the trial court's order, entered on the return date of
the OSC, granting the relief David sought without a plenary hearing.
On appeal, James reprises his arguments to the trial court that the will was
procured by undue influence, Virginia lacked testamentary capacity to execute
the will, and David's counsel, who was the same attorney who prepared the 2016
will, should have been disqualified from the matter. Reviewing the record, we
determine James failed to present any facts that raised a genuine issue to
preclude entry of the trial court's order and affirm.
David commenced this action in accordance with Rule 4:83-1 which
provides, in part: "Unless otherwise specified, all actions in the Superior Court,
Chancery Division, Probate Part, shall be brought in a summary manner by the
filing of a complaint and issuance of an [OSC] pursuant to R. 4:67." See also
N.J.S.A. 3B:2-4. Under Rule 4:67-5, the trial court must try the case on the
return date of the OSC or a "short day" it fixes. The trial court is compelled to
Inasmuch as all parties bear the same surname, we use their given names for
clarity, meaning no familiarity or disrespect.
hold a hearing if "there may be a genuine issue as to a material fact," at which
the court "shall hear the evidence as to those matters which may be genuinely in
issue, and render final judgment." Ibid. But, if "the affidavits show palpably
that there is no genuine issue as to any material fact, the court may try the action
on the pleadings and affidavits, and render final judgment thereon." Ibid.
The trial court's review of James's certification submitted in support of his
answer to David's OSC led to its conclusion that "there wasn't any real meat to
it, . . . [t]here was a lot of supposition[.]" It went on to conclude there was "no
reason not to admit this [w]ill to probate," finding the contested will "very well
laid out," provided a $1000 bequest for James as well as an ad terrorem clause,
fully complied with Title 3B, was "properly executed . . . [and] properly
Our review of summary actions conducted pursuant to Rule 4:67 applies
the usual standard for civil cases. See, e.g., O'Connell v. N.J. Mfrs. Ins. Co.,
306 N.J. Super. 166, 172-73 (App. Div. 1997) (applying substantial-credible-
evidence standard in reviewing a decision from a summary action), appeal
dismissed, 157 N.J. 537 (1998). "Findings by the trial judge are considered
binding on appeal when supported by adequate, substantial and credible
evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974). When a court makes findings of fact based on documentary evidence
alone, however, no special deference is warranted. See Clowes v. Terminix Int'l,
Inc., 109 N.J. 575, 587 (1988); Jock v. Zoning Bd. of Adjustment of Wall, 371 N.J. Super. 547, 554 (App. Div. 2004), rev'd on other grounds, 184 N.J. 562
(2005). And, "[o]ur review of a trial judge's legal conclusions is de novo."
Walid v. Yolanda for Irene Couture, Inc., 425 N.J. Super. 171, 179-80 (App.
James contends he presented sufficient evidence that Virginia's will was
the product of undue influence to warrant discovery and a plenary hearing. Our
courts have long recognized that undue influence is "mental, moral, or physical"
exertion sufficient to preclude the testator's exercise of free will, by preventing
them "from following the dictates of [their] own mind," and succumbing to "the
domination and influence of another," in dividing their estate. In re Estate of
Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943); see also Haynes v. First Nat'l
State Bank of N.J., 87 N.J. 163, 176 (1981).
The shifting burdens of proving undue influence were explained by our
Ordinarily, the burden of proving undue
influence falls on the will contestant. Nevertheless, we
have long held that if the will benefits one who stood in
a confidential relationship to the testator and if there are
additional "suspicious" circumstances, the burden
shifts to the party who stood in that relationship to the
testator. In re Rittenhouse's Will, 19 N.J. 376, 378-79
(1955). In general, there is a confidential relationship
if the testator, "by reason of … weakness or
dependence," reposes trust in the particular beneficiary,
or if the parties occupied a "relation[ship] in which
reliance [was] naturally inspired or in fact exist[ed]." In
re [Estate of] Hopper, 9 N.J. 280, 282 (1952).
Suspicious circumstances, for purposes of this burden
shifting, need only be slight.
When there is a confidential relationship coupled
with suspicious circumstances, undue influence is
presumed and the burden of proof shifts to the will
proponent to overcome the presumption.
[In re Estate of Stockdale, 196 N.J. 275, 303 (2008)
(alterations in original) (citations omitted).]
Through that lens, James's submissions to the trial court were insufficient
to establish his claim of David's undue influence over Virginia at the time the
will was executed. See In re Livingston's Will, 5 N.J. 65, 76 (1950) ("Undue
influence, to vitiate a will, must be operative at the time the will is executed.").
In his certification, James advanced that after Virginia's hospitalization in 2014,
David changed the locks on Virginia's residence. When James returned
telephone calls Virginia made to him after he moved to Florida in early 2016,
"she did not answer." "At some point, . . . David and his girlfriend moved into
[Virginia's] home, assum[ed,] care for her[,] but instead they isolated and
controlled her. [James] was not allowed to visit her, and [his] cousin Sandy
[Kohler] was also not allowed to visit or call her[.]" James averred he did not
learn of the new will—which replaced one in which he received a share equal to
his brothers and named Sandy as executor—until after Virginia's death. He
I believe my brothers have exercised undue
influence over [Virginia] or some other misconduct
occurred which resulted in the 2016 purported will. I
do not believe that [Virginia] intended to limit my share
of her estate to [$1000]. [Virginia] had a retirement
account with Prudential, where she had worked. She
made no change to beneficiaries of that account. I am
to receive an equal amount of the distribution from that
account with my brothers. Had my mother truly wished
to exclude me, she would have taken me off the
Several instances since [Virginia's] death have
confirmed that David is acting in bad faith. Neither of
my brothers informed me that she was in poor health,
nor did they contact me when she passed away. I only
learned of [Virginia's] death from a friend in New
Jersey who saw her obituary. I had always kept my
brothers informed during any medical issues [Virginia]
Sandra Kohler—Sandy—also submitted a certification in which she
claimed to enjoy a "very close relationship" with Virginia. Kohler attested
David fired home health aides who were assisting Virginia at an unspecified
time after Virginia's July 2014 hospitalization, and that David and his girlfriend
moved into Virginia's house. Kohler claimed David told Virginia "she needed
to stay away" from Kohler and "got angry" with Virginia "if he found out she
was speaking with [Kohler] on the phone." She, too, said David changed the
locks. Kohler's certification continued:
As a result, [Virginia] had to sneak phone calls
with me. She told me that she was afraid of David and
his girlfriend. I had planned to come to visit [Virginia],
but David would not allow it. [Virginia] told me that
David told her that if she didn't stop talking to me that
they would put her in a nursing home and threatened to
stop taking care of her. She told me that she wished to
go to heaven and would cry.
During these conversations, she would ask me
how her son James was doing. She knew that we kept
in touch. She said that she missed him and wanted to
see him. There was no indication that she was mad at
James. [Virginia] did say that her son Michael was
saying negative things about James and telling her
rumors based on things he saw on social media. I
assured her that these things were not true and that
James was fine.
At one point, [Virginia] told me that David
wanted her to make him her power of attorney. She told
me that her will would not change and that I would
remain executor. She again told me that she wanted her
sons to share and share alike with things to be split
equally. She didn't want them fighting over her estate.
She did mention that she wanted me to have something
of sentimental value. We spoke about a gold bracelet
which she had. And she wanted my daughter Laura to
get her great grandmother's engagement ring so that it
would stay in the family. [Virginia] never told me that
a new will had been signed in 2016, but remained clear
that her sons should share equally in her estate.
Although we do not countenance the trial court's meager analysis of this
issue, we are satisfied it properly found James failed to establish undue
influence. James's unsupported allegations are based on his belief. Most of the
alleged conduct is untethered to any timeframe. Likewise, Kohler's allegations
do not specify time periods. Moreover, none of the allegations concern undue
influence over Virginia's choices regarding the terms of the 2016 will.
In short, James's proffer does not establish a confidential relationship
between David and Virginia. It is not enough to demonstrate that a beneficiary
who stood to benefit from the will had a close relationship with the decedent.
In re Will of Liebl, 260 N.J. Super. 519, 528-29 (App. Div. 1992). Rather, there
must be some showing that the decedent was particularly vulnerable to undue
influence. Ibid. If the decedent was strong-willed, managed her own affairs,
her own finances, and was otherwise mentally competent, no presumption of
undue influence arises. See ibid. Moreover, the proffer does not establish
suspicious circumstances surrounding the preparation and execution of the 2016
James offered no evidence to refute the circumstances attested to by the
attorney who drafted the will after a private consultation with Virginia in her
home, read the will aloud to Virginia, and had his sons witness her execution.
Although Virginia was in a short-term rehabilitation facility for treatment of
back problems at the time the will was executed, the attorney certified she "was
clear-headed, alert and strong-willed, just as she had been when [counsel, during
the year prior,] represented her in . . . [a] zoning matter." Counsel averred:
At the time I initially met [Virginia], a year or so
before she signed her [w]ill on January 11, 2016, she
made a point of telling me about her long career in the
legal field as a legal secretary, paralegal and notary
public, and it was clear to me throughout my
representation of [Virginia] that she had an excellent
understanding of the significance and importance of
legal proceedings and legal documents . . . including
the [w]ill which I prepared for her[.] She knew what
she wanted in her [w]ill and she, and no one else,
controlled its contents. It was always apparent to me
that [Virginia] was a strong, independent woman who
was not under the influence of anyone else when it
came to her [w]ill.
"Summary actions are, by definition, short, concise, and immediate, and
further, are 'designed to accomplish the salutary purpose of swiftly and
effectively disposing of matters which lend themselves to summary treatment. '"
MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534,
551 (App. Div. 2005) (quoting Depos v. Depos, 307 N.J. Super. 396, 399 (Ch.
Div. 1997)). Inasmuch as a party in a summary action proceeding is not entitled
to favorable inferences such as those afforded to the respondent in a summary
judgment motion, O'Connell, 306 N.J. Super. at 172, the trial court correctly
found James raised no material issue to warrant further proceedings.
James produced even less proof that Virginia lacked requisite
testamentary capacity to execute the 2016 will. In considering the issue, courts
must consider if the decedent was able to "comprehend the property [she was]
about to dispose of; the natural objects of [her] bounty; the meaning of the
business in which [she was] engaged; the relation of each of these factors to the
others, and the distribution that is made by the will." Livingston's Will, 5 N.J.
at 73. "[A]s a general principle, the law requires only a very low degree of
mental capacity for one executing a will." Liebl, 260 N.J. Super. at 524 (quoting
In re Will of Rasnick, 77 N.J. Super. 380, 394 (Cty. Ct. 1962)). "[T]he burden
of establishing a lack of testamentary capacity is upon the one who challenges
its existence . . . . [and] must be [proven] by clear and convincing evidence." In
re Estate of Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952).
James's and Sandy's accounts of Virginia's mental condition while
hospitalized in 2014 are accompanied by James's lay diagnosis that he "thought
that, at the very least, she was suffering from some form of hypochondria. But
given her state while at the hospital, [he] thought that a psychiatric evaluation
was definitely needed." Kohler averred David cancelled a scheduled psychiatric
evaluation. Setting aside David's averment that Virginia's mental state,
including "hallucinations, paranoia and general rapid decrease in cogence," that
she experienced during her 2014 hospital stay was a one-time occurrence and
was caused by an "allergic reaction to dilaudid which remained in [Virginia's]
medical history as an allergy," there is no evidence that single incident continued
past her release from the hospital, and certainly at the time she executed the will
in 2016. See Livingston's Will, 5 N.J. at 76 (holding testamentary capacity is to
be tested at the date of the execution of the will).
Furthermore, James's claim that Virginia suffered from dementia, is not
tethered to the time when the will was executed. The mere reference of dementia
in Virginia's 2019 death certificate does not establish her testamentary capacity
in 2016. Again, James's proffer does not refute counsel's certification regarding
Virginia's competency when she signed the will. And, James's contention that
if Virginia were of sound mind, she would have noticed the misspelling of her
mother's name is without sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E). Virginia's eye condition at the time the will was executed required
counsel to read the will terms aloud; she could not have noticed a misspelling
under the circumstances. In any event, a simple spelling mistake does not
demonstrate that Virginia did not understand the nature of her property or the
transaction she was engaging in. See In re Last Will & Testament of Dietz, 41 N.J. Eq. 284, 289-90 (Prerog. Ct. 1886) (noting that the mere fact that the
decedent misspelled the words "eighteenth" and "eighteen" was not
determinative that he lacked testamentary capacity at the time he executed the
James's proofs were insufficient to establish that there was a genuine issue
as to any material fact. R. 4:67-5. As such, the trial court correctly struck the
caveat and admitted the will to probate.
Our determination obviates the necessity to address James's contention,
relying upon Rule of Professional Conduct (RPC) 3.7(a), that the trial court
erred by failing to disqualify David's counsel, who also consulted with Virginia,
prepared the 2016 will, and attended to its execution. Further, we find no merit
in James's argument that the RPC applied during the order-to-show-cause
proceeding. That proceeding was not a trial; and RPC 3.7(a) provides:
[a] lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness unless:
(1) the [lawyer's] testimony relates to an uncontested
issue; (2) the testimony relates to the nature and value
of legal services rendered in the case; or (3)
disqualification of the lawyer would work substantial
hardship on the client.
David's counsel did not meet the RPC's criteria for disqualification at that