IN THE MATTER OF THE ESTATE OF MILDRED SUESSER(311916, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0098-16T2
IN THE MATTER OF THE ESTATE
OF MILDRED SUESSER, deceased.
_____________________________
Submitted October 18, 2017 – Decided November 29, 2017
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
311916.
Mariniello & Mariniello, PC, attorneys for
appellants Linda Bickhardt and Anna Sheftall
(Joseph R. Mariniello, on the brief).
Levine DeSantis, LLC, attorneys for respondent
Sandra Pine (Steven D. Grossman and Peter
Nichols, on the brief).
PER CURIAM
Linda Bickhardt and Anna Sheftall appeal from that portion
of a July 29, 2016 order declaring a July 22, 2013 deed to be
valid.1 Appellants contended the deed was fatally defective and
the product of undue influence. Despite these contentions, the
trial court declared the deed valid. After a careful review of
1
The parties do not appeal the remaining aspects of the order.
the record and applicable principles of law, we vacate the trial
court's determination that the deed was valid and remand for
further proceedings.
I.
Following the death of her husband, decedent Mildred Suesser
was the fee simple owner of a condominium unit (the Apartment 2)
located in West New York, New Jersey. On January 5, 2012, decedent
executed a deed prepared by attorney Maria I. Lewie conveying her
ownership interest in the Apartment to herself and Sandra Pine as
tenants in common. Approximately one and one-half years later,
Lewie prepared a "correction deed" (the 2013 Deed) for the purpose
of conveying the Apartment to decedent and Pine as joint tenants
with a right of survivorship. Although the 2013 Deed would have
affected Pine's undivided one-half interest in the property, it
identified decedent as the sole grantor. However, when it was
executed on July 22, 2013, it was signed by both decedent and
Sandra Pine. On the same day they executed the deed, both decedent
and Pine executed a seller's residency certification/exemption
form. They also executed identical affidavits of consideration.
The seller's residency certification/exemption form listed both
2
Because the parties refer to the condominium unit as the
Apartment, we will do likewise.
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decedent and Pine as the sellers. Similarly, the affidavit of
consideration signed by Pine identified her as a grantor.
On January 28, 2016, Hudson County Protective Services filed
a guardianship application to adjudicate the mental capacity of
decedent, who they alleged was a vulnerable adult. The application
sought the appointment of a limited guardian to manage her affairs.
On March 7, 2016, letters of temporary guardianship pendente lite
were issued. Unfortunately, decedent died on March 22, 2016,
during the pendency of that action.
Decedent left a June 13, 2014 Will (the Will). The Will
names Linda Bickhardt and Anna Sheftall as co-executors of the
estate. The Will devises and bequeaths one-third of the residuary
estate to decedent's niece, Evelyn Beauregard, one-third to
decedent's niece, Sandra Pine, and one-third to the United States
Holocaust Memorial Museum.
The Will also contains an in terrorem clause, otherwise known
as a no-contest clause, which provides that if any beneficiary
contests the probate or validity of the Will, "then all benefits
provided for such beneficiary shall be revoked and such benefits
shall pass" to the remaining residuary beneficiaries in proportion
to their respective shares.
3 A-0098-16T2
Beauregard served as decedent's caregiver for many years,
residing with her in the Apartment. Beauregard continued to live
there after decedent's death.
On March 29, 2016, Pine filed a caveat against the Will. On
May 18, 2016, Pine filed a three-count verified complaint seeking
appointment of a temporary administrator (count one), a judgment
declaring the Deed valid, creating a joint tenancy with a right
of survivorship (count two), and removal of Beauregard from the
Apartment (count three). On June 3, 2016, the court issued an
order to show cause why judgment should not be entered: (1)
appointing a temporary administrator for the Estate; (2) declaring
the Deed valid and enforceable; (3) declaring that upon decedent's
death on March 22, 2016, ownership of the Apartment transferred
by operation of law from decedent and Pine to Pine as the surviving
joint tenant; (4) declaring that Pine has sole individual title
to the Apartment; (5) granting Pine possession of the Apartment;
and (6) ordering Beauregard to vacate the Apartment unit.
Bickhardt and Sheftall filed an answer and counterclaim. The
answer did not assert undue influence as an affirmative defense.
On May 27, 2016, Bickhardt and Sheftall filed a verified
complaint for probate of the Will in solemn form, appointing them
co-executors of the Estate, and setting aside the caveat filed by
Pine. On June 3, 2016, the trial court issued an order to show
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cause why judgment should not be entered: (1) probating the Will
dated June 13, 2014; (2) issuing letters testamentary to Bickhardt
and Sheftall as co-executors; (3) setting aside the caveat filed
by Pine; and (4) in the alternative, appointing Bickhardt and
Sheftall as temporary co-administrators, to serve without bond.
Pine filed an answer and separate defenses on July 18, 2016.
During the probate proceeding, appellants filed
certifications of Sheftall, Bickhardt, Gary M. Lachman, the
attorney who drafted the Will, and Alexander L. Locatelli, an
attorney who witnessed the execution of the Will. None of these
certifications addressed the issue of alleged undue influence
relating to the 2013 Deed.
Both orders to show cause stated that the court would
entertain argument, but not testimony, on the return date, unless
the parties were advised to the contrary before the hearing. The
parties were not advised prior to the hearing that the court would
hear testimony that day.
Appellants relied, in part, on the pleadings and reports
filed in the guardianship action. The certification of
psychologist Peter Economou, Ph.D, opined that decedent suffered
from "significant functional impairment and lack[ed] the cognitive
functioning to make decisions." His findings were based on an
evaluation performed on January 6, 2016. We note, however, that
5 A-0098-16T2
decedent's Will, which appellants sought to probate, was executed
on June 13, 2014, more than ten months after the deed was executed.
Notably, while Pine is a beneficiary of the Will, appellants do
not allege that the Will was the product of undue influence.
Appellants contend the correction deed came about after Pine,
not decedent, contacted Lewie and informed her that decedent, who
was by that time residing in an assisted living facility, wanted
to change title to the Apartment from tenants in common to joint
tenants with the right of survivorship.
Pine filed two certifications authored by Lewie, the attorney
who drafted both deeds, in support of her claim that the 2013 deed
was valid. In her certifications, Lewie described her actions and
encounters with decedent. In particular, she related the facts
surrounding the preparation and execution of the 2013 Deed in
considerable chronological detail.
The opposing orders to show cause were heard by the trial
court on July 29, 2016. Appellants did not have the opportunity
to conduct any discovery. When asked by the judge whether there
was an intent to take testimony, even if not that day, counsel for
Bickhardt and Sheftall answered, "there was not intent for me to
have testimony taken . . . ." When later asked by the judge if
he intended to take testimony from the two witnesses who were in
the courtroom, counsel again answered in the negative. The judge
6 A-0098-16T2
subsequently asked counsel, "you want me to decide the case based
on the papers and your arguments today, is that accurate[?]"
Counsel answered, "That's correct, that's what I'm seeking."
Later during oral argument, however, counsel stated: "I
don't think that issue can be settled at this point in time without
a factual plenary hearing." When confronted by the judge regarding
this statement in light of what he stated earlier, counsel stated:
No, I – I'm telling you that I think your
resolving today may be a determination that
there is more information that you need
regarding the deeds prior to you making a
decision. That's all I'm saying to you, I'm
not saying the Court can't decide.
And the point of the matter is there's a
legal question. Why didn't – if they were all
there, why didn't Mrs. Pine and Ms. Susser
simply sign as grantors and grantees, and then
there would be no question that title could
have been transferred. You can't give what
you don't have in real estate. In fact, you
can't do that in life. But that's my argument
here.
Appellants contend on appeal that any indication to the trial
court that it could render a decision without hearing testimony
was limited to their affirmative claims. They now argue that they
did not waive their right to discovery and a plenary hearing
regarding their claim that the 2013 deed was the product of undue
influence.
7 A-0098-16T2
They further claim the submissions from the guardianship
action and the facts surrounding the preparation of the 2013 deed
established a confidential relationship and suspicious
circumstances. In that regard, their attorney stated:
Your Honor, this – when [Mr. Grossman] says
there's no evidence of undue influence, that
bespeaks a[n] ignorance of the past file you
had before you. There's no question that both
[Beauregard] and Pine were in a position of
il – influence, and were in a position of
trustworthiness.
And ther[e]'s no question, according to
Mr. Joya, that there was in some way a
vulnerable adult who was pushed and pulled by
both these parties.
After hearing lengthy oral argument the judge took the matter
under advisement and issued a July 29, 2016 order. The order: (1)
removed the caveat filed by Pine; (2) admitted the Will to probate;
(3) issued letters Testamentary to Bickhardt and Sheftall as co-
executors; (4) declared that no bond shall be required; (5) denied
appointment of a temporary administrator; and (6) declared the
2013 Deed valid, creating a joint tenancy with a right of
survivorship.
With regard to the conclusion that the deed was valid, the
trial court found that
the Deed is facially valid pursuant to the
statutory requirements of N.J.S.A. 46:4-1 et
seq., and that the intention of the parties
appears clear from the face of the Deed, see
8 A-0098-16T2
Boylan v. Borough of Point Pleasant Beach, 410
N.J. Super. 564, 569 (App. Div. 2009), and
finally, that the extrinsic evidence
surrounding the Deed resolves any and all
ambiguities as to the intent of the parties,
see [i]bid. . . .
This appeal followed.
On September 22, 2016, the judge issued a supplemental written
opinion setting forth her findings of fact and legal analysis.
With regard to her ruling that the 2013 Deed was valid, the judge
stated:
The requirements for a short form deed are
enumerated in N.J.S.A. 46:4-1 et seq. The
2013 Deed meet those requirements. However,
the Deed contains an error, because both
Decedent and []Pine should have been listed
as grantors. After the 2012 Deed was
executed, Decedent and [] Pine owned the
Apartment as tenants in common. Therefore,
Decedent alone could not have conveyed a joint
tenancy with a right of survivorship to
herself and [] Pine.
In determining the meaning of a deed, the
prime consideration is the intent of the
parties. See e.g., Normanoch Association,
Inc. v. Baldasanno, 40 N.J. 113, 125 (1963);
Hagaman v. Board of Ed., 117 N.J. Super, 446,
451 (App. Div. 1971). Courts must examine the
language of the deed as a whole, including
surrounding circumstances, when determining
the intent of the parties. Hammett v.
Rosensohn, 26 N.J. 415, 423 (1958); Boylan v.
Borough of Pt. Pleasant Beach, 410 N.J. Super.
564, 569 (App. Div. 2009).
This Court finds that the Deed is facially
valid pursuant to the statutory requirements
of N.J.S.A. 46:4-1 et seq., and that the
9 A-0098-16T2
intention of the parties appears clear from
the face of the Deed, see Boylan v. Borough
of Point Pleasant Beach, 410 N.J. Super., 564,
569 (App. Div. 2009), and finally, that the
extrinsic evidence surrounding the Deed
resolves any and all ambiguities as to the
intent of the parties, see Ibid.. The weight
of the evidence suggests that Decedent and []
Pine intended to create a joint tenancy with
right of survivorship in the Apartment. The
language on the face of the Deed and the
supporting documents suggest that this was the
desired tenancy. Further, the Certification
of [] Lewie, the scrivener of the Deed, avers
that this was Decedent's intention and she
fully comprehended the legal ramifications of
such a Deed (that title to the Apartment would
pass to [] Pine upon Decedent's death by
operation of law).
Accordingly, the Court finds that that 2013
Deed was valid to create a joint tenancy with
right of survivorship to Decedent and [] Pine.
As such, the Apartment now belongs fully to
[] Pine.
Appellants raise the following issues on appeal: (1) the
trial court erred in finding the 2013 deed valid making Pine the
sole owner of the Apartment; and (2) the trial court erred by
failing to conduct a plenary hearing on the issue of undue
influence.
II.
We normally defer to the factual findings of a trial judge.
The scope of an appellate court's review of a
trial court's fact-finding is a limited one.
Trial court findings are ordinarily not
disturbed unless "they are so wholly
unsupportable as to result in a denial of
10 A-0098-16T2
justice," and are upheld wherever they are
"supported by adequate, substantial and
credible evidence."
[Meshinsky v. Nichols Yacht Sales, Inc., 110
N.J. 464, 475 (1988) (quoting Rova Farms
Resort v. Investors Ins. Co., 65 N.J. 474,
483-84 (1974)).]
See also In re Trust Created by Agreement Dated Dec. 20, 1961, ex
rel. Johnson, 194 N.J. 276, 284 (2008).
"A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to
any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140
N.J. 366, 378 (1995). "On appeal, a trial judge's statutory
interpretation is reviewed de novo." In re Estate of Fisher, 443
N.J. Super. 180, 190 (App. Div. 2015) (citation omitted), certif.
denied, 224 N.J. 528 (2016).
III.
We first address appellants' claim that the trial court erred
by deciding this matter without conducting a plenary hearing.
Appellants correctly point out that both orders to show cause
stated that "[t]he [c]ourt will entertain argument, but not
testimony, on the return date of the Order to Show Cause, unless
the [c]ourt and parties are advised to the contrary before the
return date." The parties were not advised before the return date
that the court would entertain testimony.
11 A-0098-16T2
Appellants contend that the colloquy with the court regarding
whether there was an intent to take testimony related only to
appellants' claims to probate the Will, issue letters testamentary
to them, and set aside the caveat filed by Pine.
While counsel seemingly agreed that the trial court could
decide the legal issue of the validity of the 2013 Deed without
taking testimony, appellants argue that counsel's statement was
not a waiver of the right to a plenary hearing with regard to the
issue of undue influence. They point out that counsel later
advised the court: "I don't think that issue can be settled at
this point in time without a factual plenary hearing."
Given the language in the orders to show cause and what may
have been no more than innocent miscommunication, we decline to
hold that appellants waived the right to conduct discovery or a
plenary hearing on the issue of undue influence.
We next address appellant's claim that the 2013 Deed was the
product of undue influence by Pine. Pine argues there is no
evidence of undue influence. Appellants claim the circumstances
under which the 2013 Deed was drafted raise questions as to whose
intent was really reflected in the deed, decedent's or Pine's.
Appellants maintain there are significant factual issues
regarding whether decedent was the victim of undue influence,
obligating the court to hear oral testimony and consider other
12 A-0098-16T2
evidence, rather than deciding the issue exclusively on the written
submissions. They point to the confidential relationship between
decedent and Pine, who was her niece. They also emphasize the
fact that Lewie represented both decedent and Pine with regard to
the 2013 Deed transaction. Based on the confidential relationship
and the alleged suspicious circumstances, appellants contend that
they satisfied their burden of proof which Pine failed to rebut.
The law of undue influence is well settled. 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, 87 N.J. 163,
176 (1981). “Undue influence” has been defined as a "mental,
moral or physical exertion" that destroys the "free agency of a
testator by preventing the testator from following the dictates
of his own mind and will and accepting instead the domination and
influence of another." Ibid. (citations omitted). However, "not
all influence is 'undue' influence." In re Livingston's Will, 5
N.J. 65, 73 (1950).
The first element necessary to raise a presumption of undue
influence is a “confidential relationship” between the decedent
and the beneficiary. Haynes, supra, 87 N.J. at 176. The second
element necessary to raise a presumption of undue influence is the
presence of “suspicious circumstances.” Ibid. When both elements
are present, a presumption of undue influence arises, shifting the
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burden of proof to the proponent of the instrument, who must,
under normal circumstances, overcome the presumption by a
preponderance of the evidence. Id. at 177-78 (citations omitted).
“In respect of an inter vivos gift, a presumption of undue
influence arises when the contestant proves that the donee
dominated the will of the donor, or when a confidential
relationship exists between donor and donee[.]" Pascale v.
Pascale, 113 N.J. 20, 30 (1988) (citations omitted).
A confidential relationship has also been described as one
where "the relations between the parties are of such a character
of trust and confidence as to render it reasonably certain that
the one party occupied a dominant position over the other and that
consequently they did not deal on terms and conditions of
equality." Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402
(App. Div. 2007) (citation omitted).
In order to raise a presumption of undue influence, a
confidential relationship and suspicious circumstances must be
present, but the suspicious circumstances need only be "slight."
In re Estate of Stockdale, 196 N.J. 275, 303 (2008); Haynes, supra,87 N.J. at 176. Once the presumption of undue influence arises,
“both the burden of proof . . . and the burden of going forward
with proof, shift to proponent and are identical and coincident."
14 A-0098-16T2
In re Week’s Estate, 29 N.J. Super. 533, 539 (App. Div. 1954);
accord, Haynes, supra, 87 N.J. at 177-79.
Evidence of undue influence varies from case to case, with
the relationship of the parties being a significant factor. See,
e.g., Albright v. Burns, 206 N.J. Super. 625, 635 (App. Div. 1986)
(describing how, based on a nephew and uncle's relationship, a
confidential relationship may be presumed). Here, Pine was the
decedent's niece. A fiduciary relationship may arise between aunt
and niece by reason of their closeness, family relationship, or
entrustment. See ibid.Appellants' argument on the return date of the order to show
cause regarding the issue of undue influence was minimal. They
contend, however, that the record before the trial court, which
included the guardianship pleadings and reports, was sufficient
to demonstrate the confidential relationship between decedent and
her niece, as well as suspicious circumstances surrounding the
preparation and execution of the 2013 Deed.
We fully recognize that the court might have thought that
appellants did not seek to undertake discovery, submit briefing,
or produce testimony on the issue of undue influence given
counsel's comments during oral argument. However, we decline to
deprive litigants of their day in court based on what seems to
have been a misunderstanding caused by counsel's failure to
15 A-0098-16T2
effectively communicate their request for discovery and a plenary
hearing.
In her supplemental opinion, the judge recounts the opposing
contentions of the parties regarding whether the 2013 Deed was the
product of undue influence. However, the order and supplemental
opinion do not reflect whether the judge made an independent
decision based upon an analysis of those contentions, the
underlying facts, and the applicable law. Moreover, we are unable
to determine whether the judge correctly declared the 2013 Deed
valid because the judge failed to make any findings of fact
supporting her determination or otherwise sufficiently expressing
her reasoning as to whether the deed was the product of undue
influence. In that regard, the judge did not indicate whether she
concluded that appellants failed to adequately plead, prosecute,
or prove their claim of undue influence. Nor did the judge
indicate whether a confidential relationship and suspicious
circumstances existed. Consequently, she also did not indicate
whether the burden of proof shifted.
We cannot determine on this record whether the undue influence
claim was even considered, let alone whether it was denied for
procedural or substantive reasons. We are, therefore, constrained
to vacate the portion of the order declaring the 2013 Deed valid
and remand for further proceedings consistent with this opinion.
16 A-0098-16T2
In light of our ruling, we need not reach the issue whether
the 2013 Deed was invalid because it did not identify Pine as a
grantor. Even if otherwise legally sufficient, the deed is not
valid if it was the product of undue influence.
On remand the trial court is directed to conduct a case
management conference within thirty days to address any need for
additional discovery and a testimonial hearing. The judge will
make the subsequent determination whether the 2013 Deed was the
product of undue influence.
Vacated and remanded. We do not retain jurisdiction.
17 A-0098-16T2