IN THE MATTER OF THE ESTATE OF CHARLES W. WINTER, JR. (P-1610-2013, MORRIS COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0250-15T4
IN THE MATTER OF THE
ESTATE OF CHARLES W.
WINTER, JR., DECEASED.
_______________________
Argued May 17, 2017 – Decided September 27, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, Morris County,
Docket No. P-1610-2013.
Gabriel H. Halpern argued the cause for
appellant Michelle DiPaolo (PinilisHalpern,
LLP, attorneys; Mr. Halpern, of counsel and
on the briefs).
Lauren Wachtler (Mitchell Silberberg & Knupp
LLP) of the New York bar, admitted pro hac
vice, argued the cause for respondent Lorraine
Belmont (Riker, Danzig, Scherer, Hyland &
Perretti, LLP and Ms. Wachtler, attorneys;
Khaled J. Klele, of counsel; Ms. Wachtler, of
counsel and on the brief).
Jeremy B. Stein argued the cause for
respondent Mira Morrison (Hartmann Doherty
Rosa Berman Bulbulia, LLC, attorneys; Mr.
Stein, on the brief).
Harvey H. Gilbert argued the cause for
respondent Howard Steinberg (Mr. Gilbert,
attorney, joins in the brief of respondent
Lorraine Belmont).
PER CURIAM
In this will contest, plaintiffs Michelle DiPaolo, Mary Beth
Daly, Angelo Giudice, JoAnn Giudice, Philip Giudice, and Domenick
Giudice (collectively plaintiffs), were cousins of the decedent,
Charles W. Winter, Jr., and were named as residuary beneficiaries
under his Last Will and Testament executed in 1999. Defendant
Lorraine Belmont, Winter's cousin and residuary beneficiary under
his will, shared a close family and personal relationship with him
for more than sixty years until he died on June 13, 2013. Defendant
Mira Morrison was Winter's girlfriend of more than thirty years
until he died. Defendant Howard Steinberg was Winter's best friend
since childhood and the two men worked together for many years.1
Winter executed a new will on February 7, 2013, which named
Belmont, Morrison, and their family members and Steinberg as sole
beneficiaries of his estate (the Will). Plaintiffs sought to
invalidate the Will based on defendants' alleged undue influence
over Winter. Plaintiffs appeal from two July 31, 2015 Chancery
Division orders, granting summary judgment to defendants and
dismissing the complaint with prejudice, and denying plaintiffs'
1
We shall sometimes collectively refer to Belmont, Morrison, and
Steinberg as defendants.
2 A-0250-15T4
motion for leave to file an amended complaint to add additional
claims. For the following reasons, we affirm both orders.
I.
This Chancery case began in December 2013. There was
extensive discovery over an eighteen-month period, which included
numerous depositions, answers to interrogatories, and document
production. We derive the following facts from that discovery as
well as certifications and admissions in plaintiffs' response to
Belmont's statement of facts.
Winter never married and had no children. In 1999, he
executed a will designating his parents as beneficiaries of his
estate and his thirteen cousins as residuary beneficiaries,
including plaintiffs, Belmont, and Belmont's sister, JoAnn Belmont
(JoAnn B.). Winter's parents died, leaving his cousins as the
residuary beneficiaries under his will. After Winter's parents
died, he discussed changing his will with his long-time friend and
attorney, John J. Delaney, Jr., Esq. However, he did not change
his will at that time.
In December 2012, Winter, then sixty-five years old, was
hospitalized for what he believed was pneumonia. Defendants and
JoAnn B. visited him in the hospital.
In January 2013, Winter learned his condition was not
pneumonia, but rather terminal stage four lung cancer. He was
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hospitalized periodically throughout the beginning of 2013, and
defendants visited him in the hospital and helped him with his
medical, personal, and financial needs. Plaintiffs never visited
Winter in the hospital or assisted him in any way. They visited
him only once in March 2013, at his home.
Winter was seriously ill and hospitalized on February 3,
2013. Defendants and JoAnn B. were present when Winter and
Morrison called Delaney and asked him to come to the hospital to
prepare a new will for Winter. Delaney was deposed and submitted
a certification. He testified that he spoke directly with Winter
on the telephone. Except for plaintiffs' self-serving assertions,
there is no evidence supporting their statement in their merits
brief that "[Morrison] was in a panic to call the lawyer" on
February 3, 2013. In addition, plaintiffs do not support by
reference to the record their statement that "as [Winter] appeared
to be close to death, it was [Morrison] who started the mantra
'call the lawyer, call the lawyer.'" See R. 2:6-2(2)(5). To the
contrary, when asked at his deposition whether he saw anyone
suggest to Winter that he call Delaney, Steinberg testified: "No.
[Winter] was in control. [Winter] was -- you know, you had to
know [Winter. Winter] was the boss. [Winter] wanted things done
the way he wanted them done. It was his decision [to call
Delaney]."
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Delaney arrived at the hospital shortly after the call and
saw that although Winter was in poor physical shape, he had all
his mental faculties about him and understood perfectly what he
was doing and was quite certain about the manner in which he wished
to dispose of his assets. Delaney explained that Winter was not
in a good way physically due to oxygen issues, but was lucid.
Defendants and JoAnn B. were present when Delaney arrived at
the hospital, but Steinberg left when he arrived. Delaney knew
Steinberg and Morrison, but had never before met Belmont. Delaney
described Belmont as "a very aggressive cousin." Explaining what
he meant by "aggressive," Delaney testified that Belmont
was a very caring cousin. She was there. She
was at the hospital, and probably no different
than me or anyone else, but she -- I didn't
use it in the pejorative sense, but certainly
she was very active. . . . And by the way I
would use that word for myself as well. I
would use it for my sisters as well. . . .
Just she was very active.
Winter told Delaney that he wanted a will and directed Delaney
to prepare a new will to include Belmont, Morrison, and their
respective family members as beneficiaries. Winter also stated
he wished to bequeath his antique cars, parts, and tools to
plaintiffs Angelo and Philip Giudice. Winter directed Belmont and
Morrison to prepare and provide to Delaney a list of family members
he wanted included in the will, which they wrote in Winter's and
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Delaney's presence. Delaney handwrote the will, which included
the bequests to Angelo and Philip Giudice, showed it to Winter,
and also read to him the list of names Belmont and Morrison had
prepared. Winter acknowledged each name by verbally saying "yes."
Winter named Belmont as executrix. He told Delaney he had
trust in Belmont and was confident in her abilities to carry out
his wishes. Winter spoke very glowingly to Delaney about Belmont
and Morrison, and trusted them to take care of his finances.
Winter executed the handwritten will on February 3, 2013, and
Belmont and Morrison witnessed his execution.
On the morning of February 4, 2013, Delaney had the
handwritten will reduced to a formal will that reflected precisely
what Winter had requested and was substantively identical to the
handwritten will. Delaney returned to the hospital that morning
to have Winter execute the formal will, but saw that Winter was
"in bad shape" and in no position to execute any documents.
However, when Delaney returned to the hospital that evening, Winter
had "miraculously" recovered, so Delaney discussed the formal will
and list of beneficiaries with him and he executed the will, with
Belmont and Morrison again witnessing the execution. The will
expressly revoked all prior wills and codicils.
Within a day after executing the will, Winter realized that
he forgot to include Steinberg as a beneficiary. Winter told
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Belmont and Delaney that he wanted to add Steinberg as a
beneficiary, and instructed Delaney to prepare a new will. Delaney
prepared the Will and returned to the hospital on February 7,
2013. Defendants were with Winter at the hospital when Delaney
arrived, and he asked them to leave the room. Delaney spoke
privately with Winter to ensure he intended to make the bequests
stated in the Will and fully understood the document. Delaney
explained the Will to Winter and told him that Steinberg was added
as a beneficiary. Delaney saw that Winter "clearly was in a
condition where he could execute the document, unlike . . . on
February the 4th." Upon being completely satisfied the Will
reflected Winter's intention and that Winter fully understood it,
Delaney had Winter execute it in the presence of his wife and
Morrison. The Will expressly revoked all prior wills and codicils.
Delaney sent or gave the Will to Winter, and they later talked
about it when Winter went to Delaney's home on March 16, 2013.
Regarding Winter's testamentary capacity, Delaney certified:
"There is no doubt in my mind that [Winter] was of sound mind at
the time he executed his Will, knew what he was signing, knew who
his beneficiaries were, and that the Will he asked me to draft
clearly reflected his intent and his wishes." Delaney testified
at deposition: "I've dealt with people enough to know whether
someone is lucid and competent. [Winter] clearly was in a
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condition where he could execute the document, unlike when I went
there on February [4, 2013]."
Plaintiffs admitted Steinberg was not aware of Winter's 1999
will or that Winter had executed the three wills in February 2013.
They also admitted Steinberg had no input into the Will, made no
recommendations concerning its content, and did not learn he was
a beneficiary under the Will until late May 2013.
Winter recovered, was released from the hospital in late
February 2013, and received outpatient chemotherapy. He resumed
his normal activities, including shopping and driving, and also
had "very extensive" involvement in a complicated real estate
transaction. When plaintiff JoAnn Giudice visited Winter at his
home in March 2013, she saw he was physically weak, but did not
appear to have any mental or cognitive deficiencies.
Winter had instructed Delaney to prepare a power of attorney
naming Morrison and Steinberg as power of attorney, and made very
clear to Delaney that he wanted them to have power of attorney.
Winter also instructed Delaney to prepare an advance directive for
health care naming Belmont and JoAnn B. as his health care proxies.
Delaney prepared the documents and Winter signed them at
Delaney's home on March 16, 2013. Delaney testified that Winter
had "made a miraculous comeback" and "was fully competent and
conversant, and knew exactly and precisely what he wanted to do
8 A-0250-15T4
at that time. [Belmont] was not even present at the time. . . .
[Winter] was lucid and of sound mind when these documents were
executed on March 16, 2013." Delaney specifically asked Winter
if he wanted to make any changes to the Will, and Winter said he
did not. Delaney certified that:
Had [Winter] wished to change his Will after
it was executed in the hospital on February
7, 2013, and during the more than four months
between that time and his death in June of
that year, he most assuredly would have done
so, either before or after the March 16, 2013
visit when he had me prepare the Power of
Attorney and Health Care Proxy. This simply
did not occur.
Delaney testified that "in March it was clear and unambiguous
that [Winter] was satisfied with his Will." He also testified
that although Lorraine told him Winter wanted to make changes to
the Will, and there was a "piece of paper" to that effect, which
was lost, Winter never confirmed this or contacted him to make any
changes to the Will.
Defendants spent almost every day with Winter from the time
he became ill, and cared for him until he died. In mid-April
2013, Winter suffered a significant setback in his health and was
hospitalized in late May 2013. He died on June 13, 2013.
Plaintiffs challenged the Will based on undue influence. On
January 12, 2015, the court ordered plaintiffs to serve expert
reports by March 30, 2015, and extended discovery to April 15,
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2015. Discovery had long-ended when, on June 3, 2015, plaintiffs
filed a motion to amend the complaint to add claims of mistake,
lack of testamentary capacity, and "Forgery With Respect to
[Winter's] Pension[,]" and on June 5 and 18, 2105, they served
expert reports. Defendants then filed motions for summary judgment
and to strike the expert reports, and plaintiffs filed a cross-
motion, seeking to shift the burden of proof to defendants on the
issue of undue influence.
The motion judge denied plaintiffs' motion to amend the
complaint, finding no evidence that Winter lacked testamentary
capacity at the time he executed the Will, and no evidence of
mistake or fraud. After making these findings, the judge advised
the parties that during the year 2000, he was a partner at the law
firm of Cooper, Rose & English, where Delaney was also a partner.
Delaney was associated with a different law firm at the time Winter
executed the Will. The judge afforded the parties the opportunity
to object, but no one objected.
The judge then addressed the summary judgment motions. The
judge found there was no confidential relationship between Winter
and defendants and nothing to suggest there were suspicious
circumstances. The judge determined the uncontroverted facts
established that Winter was competent when he executed the Will;
had resumed his normal life and engaged in business transactions
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after executing the Will; and never sought to change the Will.
The judge concluded that Winter was not under any undue influence
when he executed the Will and even if he was, he ratified the Will
by his conduct thereafter.
II.
Plaintiffs first contend the judge abused his discretion in
not granting leave to amend the complaint. We disagree.
"Rule 4:9-1 requires that motions for leave to amend be
granted liberally" and that "the granting of a motion to file an
amended complaint always rests in the court's sound discretion."
Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437,
456-57 (1998). The exercise of discretion requires a two-step
process: whether the non-moving party will be prejudiced, and
whether granting the amendment would nonetheless be futile. Notte
v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). "Courts are
thus free to refuse leave to amend when the newly asserted claim
is not sustainable as a matter of law." Interchange State Bank
v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997) (quoting
Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)).
"It is well settled that an exercise of that discretion will be
sustained where the trial court refuses to permit new claims and
new parties to be added late in the litigation and at a point at
which the rights of other parties to a modicum of expedition will
11 A-0250-15T4
be prejudicially affected." Murray v. Plainfield Rescue Squad,
418 N.J. Super. 574, 591 (App. Div. 2011) (citation omitted),
rev'd on other grounds, 210 N.J. 581 (2012). We discern no abuse
of discretion in the denial of plaintiffs' motion to amend the
complaint.
Plaintiffs filed their motion to amend late in the litigation,
and well after the close of discovery. To support their lack of
testamentary capacity claim, they relied on expert reports that
were not properly before the court, as the reports were served in
violation of the January 12, 2015 order, and plaintiffs never
moved to extend discovery to permit late service. In any event,
the experts did not opine that Winter lacked testamentary capacity
at the time he signed the Will; they merely opined he "had
diminished capacity and was subject to undue influence due to his
severe disabilities." Because there was no evidence that Winter
lacked testamentary capacity at the time he executed the Will,
plaintiffs' lack of testamentary capacity claim was not factually
or legally sustainable.
Plaintiffs' mistake claim lacks factual and legal support as
well. Plaintiffs alleged there was a mistake in the content of
the Will. A mistake concerning the content of a will is known as
"probable intent." "The doctrine permits the reformation of a
will in light of a testator's probable intent by 'searching out
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the probable meaning intended by the words and phrases in the
will.'" In re Estate of Flood, 417 N.J. Super. 378, 381 (App.
Div. 2010) (quoting Engle v. Siegel, 74 N.J. 287, 291 (1977)),
certif. denied, 206 N.J. 64 (2011). "[E]xtrinsic evidence may be
offered not only to show an ambiguity in a will but also, if an
ambiguity exists, 'to shed light on the testator's actual intent.'"
Ibid. (quoting Wilson v. Flowers, 58 N.J. 250, 263 (1971)). "Where
the doctrine has been used it has been done only with caution and
to clarify ambiguities in a will[.]" In re Estate of Gabrellian,
372 N.J. Super. 432, 442 (App. Div. 2004), certif. denied, 182
N.J. 430 (2005).
There are no ambiguities in the Will. The Will is clear and
unambiguous as to Winter's beneficiaries, and there is no competent
extrinsic evidence that would render its terms ambiguous. Winter
directed preparation of the list of beneficiaries, the list was
read to him, and he acknowledged each name by verbally saying
"yes." After executing the Will, Winter was fully competent. He
stated he wished to make no changes to his Will, and never
contacted Delaney to change the beneficiaries. The record does
not support plaintiffs' claim that Winter made a mistake in his
beneficiary designations.
Plaintiffs' "Forgery With Respect to Pension" claim also
lacks factual and legal support. Plaintiffs asserted that someone
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forged a State of New Jersey, Division of Pensions and Benefit
designation of beneficiary form for Winter's pension, which named
Morrison as the beneficiary of Winter's pension. However, Morrison
was not designated as the beneficiary of Winter's pension; she was
designated as the beneficiary of his life insurance, and did not
receive Winter's pension benefits. More importantly, there is no
evidence of a forgery. That Morrison could not confirm it was
Winter's signature on the form does not prove forgery.
III.
Plaintiffs next challenge the judge's grant of summary
judgment. They argue there was a confidential relationship between
Winter and defendants and suspicious circumstances, and the judge
erred in failing to shift the burden of proof to defendants.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016) (citation omitted). Thus, we consider, as the trial judge
did, "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Liberty Surplus Ins.
Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
Summary judgment must be granted "if the pleadings, depositions,
14 A-0250-15T4
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." Templo Fuente, supra,
224 N.J. at 199 (quoting R. 4:46-2(c)). "[C]onclusory and self-
serving assertions by one of the parties are insufficient to
overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41
(2005) (citations omitted). Applying the above standard, we
discern no reason to reverse the grant of summary judgment.
"[I]t is generally presumed that 'the testator [is] of sound
mind'" to execute a will. Haynes v. First Nat'l State Bank of
N.J., 87 N.J. 163, 175-76 (1981) (quoting Geller v. Livingston, 5
N.J. 65, 71 (1950)). That presumption can be overcome, however,
upon a showing of undue influence. Id. at 176. "[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[.]" In re Estate of Folcher,
224 N.J. 496, 512 (2016) (alteration in original) (quoting In re
Estate of Stockdale, 196 N.J. 275, 302-03 (2008)). As we have
held:
Undue influence is exerted where a testator
is coerced to do that which he would not have
done if left to himself, or where there is
15 A-0250-15T4
importunity which cannot be resisted and is
yielded to for the sake of peace. . . . The
clarifying test of the matter . . . is whether
the testator's mind, when he made the will,
was such that, had he expressed it, he would
have said: "This is not my wish, but I must
do it."
[In re Estate of Weeks, 29 N.J. Super. 533,
542 (App. Div. 1954) (citations omitted).]
The will challenger normally bears the burden of establishing
undue influence in execution of a will. Ibid. However, "[w]hen
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."
Folcher, supra, 224 N.J. at 512 (alteration in original) (quoting
Stockdale, supra, 196 N.J. at 303). The party defending the will
overcomes the presumption of undue influence by demonstrating that
the preponderance of the evidence reveals undue influence did not
taint the will. Ibid.A confidential relationship "generally 'encompasses all
relationships whether legal, natural or conventional in their
origin, in which confidence is naturally inspired, or, in fact,
reasonably exists.'" Ibid. (quoting Pascale v. Pascale, 113 N.J.
20, 34 (1988)). "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
16 A-0250-15T4
occupied a relation[ship] in which reliance [was] naturally
inspired or in fact exist[ed].'" Stockdale, supra, 196 N.J. at
303 (alteration in original) (quoting In re Hopper, 9 N.J. 280,
282 (1952)). A "confidential relationship" exists when
circumstances make it certain that the parties do not deal on
equal terms, but on one side there is an overmastering influence,
or, on the other, weakness, dependence or trust justifiably
reposed. In re Estate of Hopper, 9 N.J. 280, 282 (1952).
"Suspicious circumstances" are those circumstances that
"require explanation." Haynes, supra, 87 N.J. at 176 (quoting In
re Rittenhouse's Will, 19 N.J. 376, 379 (1955)). "Suspicious
circumstances . . . need only be slight." Stockdale, supra, 196
N.J. at 303 (citation omitted).
We disagree there was no confidential relationship between
Winter and defendants. Defendants had close familial and personal
relationships with Winter, and he trusted them and depended on
them during his illness to assist with his medical, personal, and
financial affairs. This was sufficient to establish a confidential
relationship.
Arguably, there were suspicious circumstances, as defendants
were present when Winter called Delaney to the hospital to prepare
a new will. However, there was no evidence of coercion or mental,
moral, or physical exertion of any kind by defendants that
17 A-0250-15T4
destroyed Winter's free will to follow the dictates of his own
mind as it related to the disposition of his assets. Winter was
lucid when he executed the Will and the decision to do so was his
and his alone. The Will reflected Winter's intent as to the
disposition of his assets, and there is no evidence to the
contrary. The preponderance of the evidence reveals undue
influence did not taint the Will. Accordingly, summary judgment
was properly granted.
IV.
Lastly, plaintiffs argue the judge should have drawn an
adverse inference against defendants; Winter revoked the Will or
prepared a holographic codicil; and the judge should have recused
himself because of the appearance of impropriety. We have
considered these arguments in light of the record and applicable
legal principles, and conclude they are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
However, we make the following brief comments.
Plaintiffs never moved before the judge for his recusal. See
Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990) (requiring
a motion to "be made to the judge sought to be disqualified")
(citing R. 1:12-2; N.J.S.A. 2A:15-49). Because plaintiffs never
moved for recusal, the issue is waived and not preserved for
appeal.
18 A-0250-15T4
Affirmed.
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