IN THE MATTER OF THE ESTATE OF LEOKADIA JENSEN (P-0299-2016, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2901-17T1
A-2926-17T1
IN THE MATTER OF THE
ESTATE OF LEOKADIA JENSEN,
Deceased
______________________________
Submitted October 7, 2019 – Decided January 30, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Morris County, Docket No. P-
0299-2016.
Robert James Stack, attorney for Lisa Brewer, appellant
in A-2091-17 and respondent in A-2926-17.
Jay J. Freireich, attorney for Roberta Gannon, appellant
in A-2926-17 and respondent in A-2901-17.
Donnelly Minter & Kelly, LLC, attorneys for
respondent The Estate of Leokadia Jensen (Patrick B.
Minter, of counsel and on the briefs; Thomas J. Coffey
and Christopher J. Trofimov, on the briefs).
McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for respondents Interfaith Food Pantry and
Morris County Women's Republican Club, join in the
brief of respondent The Estate of Leokadia Jensen.
Sherman Wells Sylvester & Stamelman, LLP, attorneys
for respondents Jersey Battered Women's Service Inc.,
join in the brief of respondent The Estate of Leokadia
Jensen.
Posner & Kramer, LLP, attorneys for respondent The
Salvation Army, join in the brief of respondent The
Estate of Leokadia Jensen.
Foley & Lardner, LLP, attorneys for respondent
Hillsdale College, join in the brief of respondent The
Estate of Leokadia Jensen.
Riker Danzig Scherer Hyland Perretti, LLP, attorneys
for respondent Otterbein University, join in the brief of
respondent The Estate of Leokadia Jensen.
Michael F. Rehill, attorney for respondent St. Peter's
Episcopal Church, joins in the brief of respondent The
Estate of Leokadia Jensen.
PER CURIAM
These appeals arise from a will contest. In A-2901-17, plaintiff Lisa
Brewer appeals from Chancery Division orders: (1) dismissing her amended
complaint with prejudice for failure to state a claim upon which relief can be
granted pursuant to Rule 4:6-2(e); (2) denying reconsideration of the dismissal;
(3) denying her application for an award of attorney's fees; and (4) denying
reconsideration of the denial of her counsel fee application. In A-2926-17,
A-2901-17T1
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proposed intervener Roberta Gannon appeals from orders denying her motion to
intervene as moot and denying reconsideration. We consolidate these appeals and
issue a single opinion. We affirm as modified by this opinion.
I.
Because Brewer's appeal is from a dismissal of her amended complaint
pursuant to Rule 4:6-2(e), we base our review on the facts alleged in the amended
complaint and the will executed by decedent Leokadia Jensen in 2013. See Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) ("In evaluating motions to
dismiss, courts consider 'allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a
claim.'" (citation omitted)). We view the facts in a light most favorable to Brewer
and afford her all reasonable inferences. See Pressler & Verniero, Current N.J. Court
Rules, cmt. 4.1.1 on R. 4:6-2(e) (2020).
According to the complaint, Brewer and Gannon were decedent Leokadia
Jenson's only children. Decedent suffered from physical infirmities, limiting her to
verbal commands toward the end of her life. Decedent was "blind and entirely
reliant upon others to assist her in her most basic functions." Decedent "relied solely
upon" defendant Anthony M. Bucco, an attorney, "for her legal issues." She passed
away at the age of ninety on January 17, 2016.
A-2901-17T1
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Decedent was "frugal" and had accumulated significant savings during her
life. Near the end of her life she told Brewer that "she was worth approximately
$2,500,000." Decedent was otherwise "extremely secretive and private concerning
her finances."
Decedent executed a living will that named Brewer as her medical
representative. Nevertheless, "on a few occasions, [decedent] threatened to take
[Brewer] out of her will."
On October 2, 2013, decedent executed a will (the 2013 Will) prepared by
defendant that expressly disinherited Brewer "because of an argument
[Brewer's] husband and [decedent] had about [the] family dog." The 2013 Will
also expressly disinherited Gannon. Decedent and Brewer "reconciled shortly
thereafter." Defendant kept possession of the original of the 2013 Will; decedent
was not given a copy or access to it.
In August 2015, decedent, along with her home health aide, Kristen Colavito,
began contacting defendant regarding changes decedent wanted to make to the 2013
Will. Thereafter, decedent sent defendant a notarized instruction that Brewer was to
receive the contents of decedent's Franciscan Oaks apartment. In addition, decedent
notified defendant that "she did not want her old will in effect."
A-2901-17T1
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Despite these repeated requests, defendant did not prepare a revised will until
early December 2015 and did not present it to decedent until January 9, 2016, when
decedent was in hospice care. Defendant claimed decedent did not execute the
updated will (the 2016 Draft) because she wanted to revise it by adding an unborn
future grandchild as an additional beneficiary. Defendant knew of decedent's desire
to add the additional beneficiary "since December 2015."
The following week, defendant ignored repeated calls from Colavito who, at
decedent’s request, attempted to inform defendant that "[decedent] was dying and
needed to sign the will 'making sure [Brewer] was taken care of for life.'" Decedent
"died the day after the last call," on January 17, 2016.
On January 29, 2016, defendant applied to the Morris County Surrogate to
probate the 2013 Will. That same day, the Surrogate admitted the 2013 Will to
probate and issued letters testamentary to defendant.
On May 31, 2016, Brewer filed a complaint in the Probate Part against
defendant in his capacity as executor of the Estate of Leokadia Jensen (the Estate).
Two days later, Brewer filed a six count amended complaint.
Count one alleged the 2013 Will contains a forged signature of the decedent,
noting the decedent's signatures on pages four and five of the 2013 Will are
"substantially dissimilar" thereby "call[ing] into question the validity of the
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signature." In addition, Brewer and Colavito "are highly familiar with [decedent's]
signature and deny that the signature on page [four] of the 2013 Will is that of
[decedent]." Brewer sought appointment of a handwriting expert to issue an expert
opinion as to the validity of the signatures on the 2013 Will.
Count two alleged the 2016 Draft is valid under N.J.S.A. 3B:3-2 and -3 and
should be deemed to be decedent's will, stating:
24. On or about January 9, 2016, [decedent] was
presented with [the 2016 Draft] which reflected her
wishes and was substantially different from a previous
will in that it included her caregiver and daughter as a
beneficiary.
25. [Decedent] was blind at this time[,] was not able to
write and needed help with every conceivable chore or
task, including signing a document.
26. [Decedent] had expressed that her desire to include
her daughter Lisa Brewer in her will to her attorney
Anthony Bucco on multiple occasions since August
2015; to her daughter, Lisa Brewer, on multiple
occasions since August 2015; and to her home health
aide Kristen Colavito on multiple occasions since
August 2015.
27. [Decedent] was read the contents of the [2016
Draft] which included her daughter Lisa Brewer as
beneficiary and verbally agreed to its contents to her
attorney Anthony Bucco. In addition to agreeing to the
contents of [the 2016 Draft], [decedent] requested the
addition of her unborn grandchild as a beneficiary.
A-2901-17T1
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28. Despite not having signed the [2016 Draft], at the
moment of her verbal assent, this document became her
expression of her desires for her estate and meets the
requirements as set forth in N.J.S.A. 3B:3-2 for a
holographic will.
Count three alleged decedent verbally revoked the 2013 Will under the
following circumstances:
30. [Decedent's] attorney kept the original of her 2013
Will and [decedent] was not given a copy nor did she
have access to said 2013 Will. As such [decedent] was
not able to destroy or otherwise physically revoke her
2013 Will.
31. As [decedent] was blind and bedridden and
required help and assistance in all ordinary tasks, and
was limited solely to verbal commands, her verbal
revocation of her 2013 Will to her daughter Lisa
Brewer, her home health aide Kristen Colavito [and]
her attorney Anthony Bucco, constitute a revocation for
purposes of N.J.S.A. 3B:3-13.
Count four alleged defendant exerted undue influence over the decedent by
engaging in the following conduct: (1) keeping the 2013 Will at his office despite
knowing decedent wished to revoke the will, thereby "depriving [decedent] of the
ability to revoke [the] will in the traditional manner or in any other manner remotely
possible," (emphasis omitted); (2) "purposefully failing to return [decedent's] phone
calls," thwarting her "efforts to execute a new will naming her daughter Lisa Brewer
as an heir;" (3) informing his long-time client that he had completed her will in
A-2901-17T1
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December 2015, but failing to present it to decedent until she "was on her death bed";
(4) appearing at decedent's hospital death bed with the 2016 Draft that substantially
changed her previous will by adding Brewer as a beneficiary, "yet he did not
complete the will with her signature, instead leaving her bedside for a de minimis
change, which in fact was pretense to further his undue influence;" and (5) by
promising to return with the will "post haste" and ignoring "repeated exaltations and
phone calls that [decedent] was about to die."
Count five alleged defendant committed fraud by engaging in the following
conduct. In the months leading up to decedent's death, defendant told her he
would take care of her will while having no intention of doing so. In the days
before her death, defendant was aware decedent was gravely ill and promised her
to return quickly with her will, but had no intention of doing so. Defendant was
also aware decedent would rely on his statements and it was reasonable for her
to do so. Count six alleged defendant committed legal malpractice.1
On June 21, 2016, the Morris County Surrogate ordered defendant as Executor
of the Estate to show cause why: (1) the 2013 Will should not be revoked; (2) the
Executor should not be barred from distributing any estate assets or paying any bills;
1
Count six was voluntarily dismissed without prejudice by stipulation of
dismissal. Accordingly, we do not address the count six in this opinion.
A-2901-17T1
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(3) the Letters Testamentary issued to defendant should not be revoked; (4) the
unsigned 2016 Draft should not be deemed decedent's Last Will and Testament and
admitted to probate; and (5) decedent should not be determined to have died intestate
in the event no will of the decedent is admitted to probate.
In July 2016, the Estate moved to dismiss Brewer’s complaint for failure to
state a claim upon which relief may be granted. Gannon moved to intervene. The
Estate opposed Gannon’s motion. More than one year later, on August 4, 2017, the
chancery judge dismissed Brewer’s amended complaint, finding certain counts time-
barred and all counts (even if timely) failed to state a claim upon with relief can be
granted. The judge also dismissed Gannon's motion for leave to intervene and file a
counterclaim as moot since the underlying complaint was dismissed.
In his written Statement of Reasons, the motion judge noted decedent began
hospice care on December 17, 2015. She fell, suffered a fractured pelvis, and was
hospitalized on January 13, 2016. She was then transferred to Franciscan Oaks
Rehabilitation Center, where she died on January 17, 2016. The judge explained
that Rule 4:85-1 requires complaints contesting a probated will to be filed within
four months after probate. Here, the complaint was filed on May 31, 2016, slightly
beyond four months after the will was admitted to probate on January 29, 2016. The
A-2901-17T1
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judge concluded that counts one, two, and three of the complaint, which challenged
admission of the will to probate, were time-barred.
The motion judge also found that counts one, two, and three failed to
adequately state a cause of action. Count one alleged decedent's signature on page
four of the 2013 Will was forged, stating that her signature on page four is
"substantially dissimilar" from her signature of page five. The judge noted the 2013
Will has no page five. He found the 2013 Will was executed in accordance with
N.J.S.A. 3B:3-4, and thereby self-proving. The judge noted the amended complaint
admitted decedent had written Brewer out of the 2013 Will and suggested she
intended to execute the 2013 Will. Despite this, Brewer still alleged it was
incorrectly admitted to probate because the decedent had subsequently revoked it.
The judge concluded Brewer failed to plead the necessary elements to set aside the
probated self-proving 2013 Will.
Count two alleged the unexecuted 2016 Draft should be admitted to probate.
The judge noted that in order to meet the clear and convincing standard for a writing
to be considered a will under N.J.S.A. 3B:3-3, the proponent must prove that the
decedent actually reviewed the will and thereafter gave her final assent to it. The
judge found Brewer did not plead and could not establish that decedent gave her
final assent to the 2016 Draft because decedent told defendant she still wanted to
A-2901-17T1
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include her unborn grandchild as an additional beneficiary. The judge also found
the 2016 Draft "does not meet the requirements of a holographic will, as it was not
drafted in [d]ecedent's own hand or signed by [d]ecedent." Accordingly, he found
count two failed to state a cause of action.
Count three alleged decedent revoked the 2013 Will. The motion judge noted
"a will can be revoked by either executing a subsequent will that revokes the prior
will expressly or by inconsistency," or by the performance of a revocatory act with
the intent and for the purpose of revoking the will, such as "burning, tearing[,]
cancelling, obliterating or destroying the will or any part of it," quoting N.J.S.A.
3B:3-13(b) The judge found Brewer's claim of verbal revocation failed as a matter
of law since the decedent did not execute a subsequent will that revoked the 2013
Will, and "did not physically perform a revocatory act on the 2013 Will with an
intent to revoke it." Therefore, count three failed to state a claim upon which relief
can be granted.
Count four alleged defendant exerted undue influence. The motion judge
found the amended complaint did not assert defendant "used any mental, moral or
physical exertion to overcome the free agency of [d]ecedent." Rather, the
amended complaint alleged that when defendant presented a revised will on
January 9, 2016, decedent requested further revisions. The judge concluded
A-2901-17T1
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Brewer "cannot sufficiently state a cause of action for undue influence based
solely on the allegation that [defendant] did not return with a revised will prior
to [d]ecedent's passing eight days later." Accordingly, count four was
dismissed.
Count five alleged defendant committed fraud by misrepresenting an intent to
promptly revise decedent's will, with knowledge of decedent's illness, despite having
no intention to return promptly with the revised will. Brewer further alleged
defendant knew decedent would rely on his statements, such reliance was
reasonable, thus harming the Estate and intended beneficiaries. The motion judge
found Brewer could not establish defendant made any material misrepresentations
to decedent of any present or past fact. The judge noted defendant did return with a
revised will within the following eight days and his statement to decedent that he
would return with a further revised draft, "is not a material misrepresentation of a
present or past fact, but a declaration of a future intent." Moreover, Brewer did
not allege defendant "misstated any exact timeframe within which he would
return and failed to do so." The judge concluded that even if defendant had done
so, "such statement would not be a material misrepresentation of a past or
present fact." Accordingly, count five was dismissed.
A-2901-17T1
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The motion judge also dismissed count six alleging defendant committed legal
malpractice. Ultimately, each count of the amended complaint was dismissed with
prejudice.
In the interim, Gannon moved to intervene. While acknowledging she was
otherwise time-barred, she argued that she could interplead. She contended her
interests in the case are substantially aligned with Brewer's, and as such, her cause
of action is preserved through Brewer's timely filing. Gannon also sought leave to
file an amended complaint. The motion judge dismissed Gannon's motion to
intervene. He noted Gannon sought admission of a 1992 Will that would not
disinherit her. Gannon's attempt to file a counterclaim was deemed out-of-time as
an independent filing and procedurally incorrect.
The judge noted Gannon filed her application to intervene on May 23, 2017,
well out-of-time even for out-of-state residents under Rule 4:85-1. The judge
characterized Gannon's attempt at intervention as "an attempt to enter the case
through a 'back door,' avoiding the time limitations of [Rule] 4:85-1." The judge
also concluded Gannon's claims were not aligned with Brewer's. Instead, he found:
The respective relief sought by [Brewer] and Gannon
are profoundly different, and ultimately prejudicial to
one another. Therefore, allowing Gannon to proceed
by allowing her to initiate an entirely new, and untimely
action would be extremely prejudicial to [defendant].
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Furthermore, her intervention is entirely moot because
[Brewer's] complaint is herein dismissed.
Brewer moved for reconsideration. She argued her claims were not time-
barred and dismissal with prejudice was error because she should have been granted
leave to re-amend her complaint. She further argued that dismissal of count six was
error since the parties had previously stipulated to dismiss that count without
prejudice. The motion judge concluded Brewer's claims were not time-barred
because the four-month filing period ended during Memorial Day weekend.
Therefore, the complaint was timely filed on May 31, 2016. Nevertheless, the judge
determined Brewer failed to state a cause of action as to counts one through five and
denied reconsideration. The judge also rejected Brewer's argument that defendant's
association with a charitable beneficiary of the 2013 Will, which would have been
disinherited under the 2016 Draft, motivated defendant not to allow decedent to
execute the 2016 Draft. Likewise, the judge found the amended complaint fell
"woefully short" of meeting the requirement that fraud be pleaded with particularity.
The judge acknowledged that the parties had voluntarily stipulated to the dismissal
of count six without prejudice.
In March 2018, Brewer appealed. Three months later she moved for an award
of attorney's fees and costs pursuant to Rule 4:42-9(a)(3). We remanded the case to
the trial court to decide Brewer's counsel fee application. The chancery judge denied
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the fee application as untimely because it was not filed within twenty days as
required by Rules 4:42-9(d) and 4:49-2.
Brewer moved for reconsideration. Although conceding her counsel fee
application was untimely, she argued the court should reconsider her application
because other judges had permitted untimely fee applications in unrelated and
unreported cases. Both the Estate and the Attorney General, in his parens patriae
capacity, opposed reconsideration. The judge noted Brewer did "not claim that the
[c]ourt failed to consider or appreciate probative, competent evidence, or bring to
the [c]ourt's attention any new or additional information which [she] could not have
provided on the first application." The judge also found Brewer had not produced
"a single credible reason as to why her application was dilatory for an interests of
justice analysis." The judge found the delay was "excessive by any standard" and
"especially egregious" since at least five other attorneys involved in the case had
filed timely fee applications. For these several reasons, the judge denied
reconsideration.
These appeals followed. In A-2901-17, Brewer raises the following points: 2
POINT I
THE COURT ERRED IN DISMISSING PLAINTIFF'S
CLAIMS WITH PREJUDICE. THE COMPLAINT
2
For purposes of clarity and brevity, we have edited plaintiff's point headings.
A-2901-17T1
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SET FORTH CLAIMS UPON WHICH RELIEF CAN
BE GRANTED. DISMISSAL SHOULD NOT HAVE
BEEN CONSIDERED BEFORE DISCOVERY WAS
ALLOWED. ANY DISMISSAL SHOULD HAVE
BEEN WITHOUT PREJUDICE.
POINT II
THE COURT ERRED BY NOT FINDING A
PRESUMPTION OF UNDUE INFLUENCE EXISTED
AND FAILING TO SHIFT THE BURDEN OF PROOF
TO DEFENDANT.
POINT III
THE COURT ERRED BY NOT FINDING THE 2013
WILL WAS FORGED AND FRAUDULENTLY
WITHHELD FROM DECEDENT.
POINT IV
THE COURT ERRED BY IGNORING A CONFLICT
OF INTEREST, ACTS OF ELDER ABUSE,
CRIMINALITY, AND THE APPEARANCE OF BIAS
BECAUSE IT WAS BIASED. ANY FURTHER
PROCEEDINGS SHOULD BE VENUED OUTSIDE
OF MMMORRIS COUNTY.
POINT V
THE COURT BELOW ABUSED ITS DISCRETION
IN DENYING PLAINTIFF ATTORNEY'S FEES.
In A-2926-17, Gannon raises the following points: (1) dismissal was
premature; (2) if dismissal was appropriate, it should have been without
prejudice; and (3) denying intervention was error.
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II.
"In considering a motion to dismiss under Rule 4:6-2(e), courts search the
allegations of the pleading in depth and with liberality to determine whether a cause
of action is 'suggested by the facts.'" Rezem Family Assocs. v. Borough of
Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011) (quoting Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Courts must "ascertain
whether the fundament of a cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if necessary." Printing Mart-
Morristown, 116 N.J. at 746 (citation omitted). "At this preliminary stage of the
litigation the [c]ourt is not concerned with the ability of plaintiffs to prove the
allegation contained in the complaint. For purposes of analysis plaintiffs are entitled
to every reasonable inference of fact." Ibid. (citations omitted).
"On appeal, we apply a plenary standard of review from a trial court's decision
to grant a motion to dismiss pursuant to Rule 4:6-2(e)." Rezem Family Assocs., 423
N.J. Super. at 114 (citation omitted). "We owe no deference to the trial court’s
conclusions." Ibid.
III.
We begin our analysis by noting the parties engaged in protracted settlement
efforts that proved unsuccessful. They did not commence discovery before the
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dismissal motion was filed and decided. A motion to dismiss under Rule 4:6-2(e)
"may not be denied based on the possibility that discovery may establish the requisite
claim; rather, the legal requisites for plaintiffs' claim must be apparent from the
complaint itself." Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202
(App. Div. 2003) (citation omitted).
"Ordinarily, a dismissal for failure to state a claim is without prejudice."
Pressler & Verniero, cmt. 4.1.1 on R. 4:6-2(e); see Printing Mart-Morristown, 116
N.J. at 772 (noting "barring any other impediment . . . the dismissal should be
without prejudice to a plaintiff’s filing of an amended complaint”). Dismissal with
prejudice is appropriate, however, if provision of an opportunity to amend would be
futile. Johnson v. Glassman, 401 N.J. Super. 222, 246-47 (App. Div. 2008)
A.
Count two alleges the 2016 Draft is a valid will because decedent verbally
assented to the contents of such document and, therefore, satisfied the statutory
requirements for a holographic will under N.J.S.A. 3B:3-2(b) and a will under
N.J.S.A. 3B:3-3.
N.J.S.A. 3B:3-2 sets forth the requirements for execution of a traditional will
and a holographic will. To be admitted to probate, a holographic will requires "the
signature and material portions of the document" be "in the testator’s handwriting."
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N.J.S.A. 3B:3-2(b); see also In re Probate of Will & Codicil of Macool, 416 N.J.
Super. 298, 311 (App. Div. 2010). A document "is treated as if it had been executed
in compliance" with N.J.S.A. 3B:3-2 if the proponent of such document:
establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute:
(1) the decedent’s will; (2) a partial or complete revocation
of the will; (3) an addition to or an alteration of the will;
or (4) a partial or complete revival of his formerly revoked
will or of a formerly revoked portion of the will.
[N.J.S.A. 3B:3-3.]
For a writing to be admitted into probate as a will,
the proponent of the writing must prove, by clear and
convincing evidence, that: (1) the decedent actually
reviewed the document in question; and (2) thereafter
gave his or her final assent to it. Absent either one of
these two elements, a trier of fact can only speculate as
to whether the proposed writing accurately reflects the
decedent's final testamentary wishes.
[Macool, 416 N.J. Super. at 310.]
Here, Brewer states that "[i]n addition to agreeing to the contents of" the 2016
Draft, decedent "requested the addition of her unborn grandchild as a beneficiary."
This request to modify the 2016 Draft directly conflicts with the "final assent"
requirement for a will under N.J.S.A. 3B:3-2. Ibid.
In addition, the record shows the 2016 Draft was not in decedent's
handwriting. Brewer acknowledges defendant prepared the 2016 Draft and that
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decedent did not sign it. Consequently, the 2016 Draft also does not qualify as a
holographic will under N.J.S.A. 3B:3-2(b). Therefore, Brewer's claim was properly
dismissed with prejudice.
B.
Count three alleges decedent’s verbal revocation of the 2013 Will
"constitute[s] a revocation for purposes of N.J.S.[A.] 3B:3-13" because decedent did
not have a copy or access to said will and because decedent was "limited solely to
verbal commands" due to her physical infirmities.
A will may be revoked:
(a) By the execution of a subsequent will that revokes the
previous will or part expressly or by inconsistency; or
(b) By the performance of a revocatory act on the will, if
the testator performed the act with the intent and for the
purpose of revoking the will or part or if another individual
performed the act in the testator's conscious presence and
by the testator's direction. . . .
[N.J.S.A. 3B:3-13.]
A "'revocatory act on the will' includes burning, tearing canceling, obliterating
or destroying the will or any part of it." N.J.S.A. 3B:3-13(b). "There can be no
revocation, unless there be both the act demanded by the statute and the intention
stated." In re Spiegelglass, 48 N.J. Super. 265, 268 (App. Div. 1958).
A-2901-17T1
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Brewer's revocation claim fails because verbal revocation, unaccompanied by
a revocatory act, is insufficient to revoke a will. Ibid.; see Meeker v. Boylan, 28
N.J.L. 274, 306 (Sup. Ct. 1860) (noting that a will can only be revoked in the manner
provided by statute, and cannot be revoked by the mere verbal declarations of the
testator). Brewer does not allege that decedent burned, tore, cancelled, obliterated
or destroyed the 2013 Will or any part of it. Nor does she allege decedent instructed
anyone to undertake any such revocatory act on her behalf. In addition, decedent
did not execute a subsequent will revoking the 2013 Will expressly or by
inconsistency. Therefore, Brewer's claim fails under N.J.S.A. 3B:3-13. Count three
was properly dismissed with prejudice.
C.
Count four alleges defendant exerted undue influence over decedent because
he kept the 2013 Will in his office despite having knowledge decedent wanted to
revoke it. It further alleges defendant did not present the revised will to decedent
until she was on her death bed and did not complete the will with her signature
because of a de minimis change.3 He did not return with a final version of the will
before decedent's death.
3
Including an unborn grandchild as an additional beneficiary of a will is not a de
minimis change.
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Undue influence is defined as "mental, moral, or physical exertion which has
destroyed 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." Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (1981) (citations
omitted). A presumption of undue influence arises if "the will benefits one who
stood in a confidential relationship to the testatrix and there are additional
circumstances of a suspicious character present which require explanation." In re
Rittenhouse’s Will, 19 N.J. 376, 378-79 (1955).
"A confidential relationship arises . . . where the parties occupied relations in
which reliance is naturally inspired or in fact exists, as the relation between client
and attorney." In re Hopper, 9 N.J. 280, 282 (1952) (citations omitted). The
suspicious circumstances "need be no more than slight." Haynes, 87 N.J. at 176
(citations omitted). The party contesting a will bears the burden of proving undue
influence, unless a presumption of undue influence appears. Rittenhouse, 19 N.J. at
378-79. Ibid.
The motion judge rejected Brewer's "bald assertions" that defendant "was
associated with one particular charitable beneficiary of the 2013 Will, which would
have been disinherited under the 2016 [Draft]." The motion judge noted Brewer
"essentially intimates that [defendant] refused to comply with the [d]ecedent's death-
A-2901-17T1
22
bed wishes in order to preserve the charitable bequest to the allegedly associated
charity." The judge concluded Brewer's theory and the supporting facts "remain
tenuous and require great logical leaps in order to make a coherent narrative."
Notably, the amended complaint does not contain these unsupported allegations.
Instead, Brewer first raised this theory after the Estate moved to dismiss the amended
complaint. In footnote ten of her brief, Brewer cryptically refers to defendant being
a "Morris County Republican" [and one] of his alleged beneficiaries is the Morris
County Women's Republican Club." (Emphasis added). The footnote then asserts
four of the "alleged" six beneficiaries have unspecified "connections to [defendant]
and/or strange appearance for decedent." We further note that Brewer's proposed
second amended complaint does not plead these allegations with specificity.
The amended complaint also fails to allege facts suggesting defendant
exercised "coercion or domination" over decedent as to destroy her free agency and
compel her to dispose of her property in a manner she would not otherwise have
done. In re Livingston’s Will, 5 N.J. 65, 73 (1950). Accordingly, count four was
properly dismissed. However, Brewer may be able to plead sufficient facts to raise
a presumption of undue influence. The motion record identifies defendant as a
potential indirect beneficiary of the 2013 Will. Defendant's attorney/client
relationship with decedent qualifies as a confidential relationship. Accordingly,
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Brewer may be able to sufficiently state a claim for undue influence by further
amending the complaint. Therefore, count four should have been dismissed without
prejudice.
The burden of proof did not shift to defendant because Brewer did not
sufficiently plead a prima facie claim for undue influence. If, through amendment,
Brewer establishes a prima facie case, then the burden of proof would shift to
defendant. See Haynes, 87 N.J. at 176 (explaining the presumption of undue
influence "will shift the burden of proof to the proponent"). All applicable defenses
are preserved if an amended complaint is filed, including those related to timeliness.
D.
Count one alleges forgery of decedent's signature; count five alleges common
law fraud. Brewer stated she was "voluntarily dismissing the forgery claim and in
essence sweeping those allegations into fraud."
The elements of common-law fraud are: "(1) a material misrepresentation of
a presently existing or past fact; (2) knowledge or belief by the defendant of its
falsity; (3) an intention that the other person rely on it; (4) reasonable reliance
thereon by the other person; and (5) resulting damages." Gennari v. Weichert Co.
Realtors, 148 N.J. 582, 610 (1997) (citation omitted). Rule 4:5-8(a) requires that the
alleged fraud be pled with particularity to the extent practicable. "A court may
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dismiss a complaint alleging fraud if 'the allegations do not set forth with specificity,
nor do they constitute as pleaded, satisfaction of the elements of legal or equitable
fraud.'" State, Dep't of Treasury v. Qwest, 387 N.J. Super. 469, 484 (App. Div.
2006) (quoting Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 315 (App. Div.
1999)).
Brewer contends one of the signatures on the 2013 Will is "substantially
dissimilar" to another; and both she and Colavito deny its decedent's signature.
Brewer did not retain a handwriting expert to analyze the validity of the signatures
on the 2013 Will. Without more, these facts are insufficient under Gennari to state
a cause of action for forgery or fraud.
Brewer also alleges defendant committed fraud because he misrepresented to
decedent the 2016 Draft would be executed, decedent relied on defendant's
misrepresentation, and defendant intentionally failed to execute said will to the
detriment of decedent's intended beneficiaries. Brewer asserts defendant was aware
decedent was gravely ill and promised her to return quickly with the revised
will, but had no intention of doing so.
We concur with the motion judge that defendant's statement to decedent that
he would return with a further revised draft was "not a material misrepresentation
of a present or past fact, but a declaration of a future intent." Brewer did not
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allege defendant misstated an exact timeframe within which he would return.
Even if defendant had done so, any such statement would not be a material
misrepresentation of a past or present fact.
As noted by the motion judge, the 2013 Will was executed in accordance with
N.J.S.A. 3B:3-4, and thereby self-proving. The amended complaint admits that
decedent had written Brewer out of the 2013 Will and she intended to execute the
2013 Will; yet Brewer alleges it was incorrectly admitted to probate because
decedent had subsequently revoked it.
Brewer failed to state a claim for fraud upon which relief can be granted. She
also failed to plead a cause of action for forgery with sufficient particularity and
agreed to "voluntarily dismiss[] the forgery claim and in essence sweep[] those
allegations into fraud." Brewer does not contend discovery would reveal additional
facts in support of her claim. Nor does she offer any additional material facts if
permitted to amend her complaint. Therefore, attempting to amend the complaint to
state a cause of action would be futile. See Johnson, 401 N.J. Super. at 247 (stating
that in a case in which a heightened pleading standard is imposed, "we infer
from plaintiff's silence as to additional proposed allegations, that provision of a
further opportunity to amend would not be fruitful."). Permitting amendment of
a complaint "rests in the court's sound discretion." Kernan v. One Washington
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Park, 154 N.J. 437, 457 (1998) (citations omitted). We thus perceive no abuse of
discretion in dismissing count five with prejudice. As we have dismissed the fraud
claim with prejudice, count one is similarly dismissed.
IV.
We next address the denial of Brewer's application for an award of attorney's
fees as untimely. Our standard of review is deferential. "[F]ee determinations by
trial courts will be disturbed only on the rarest of occasions, and then only because
of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427,
444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
"If probate is granted, and it shall appear that the contestant had reasonable
cause for contesting the validity of the will or codicil, the court may make an
allowance to . . . the contestant, to be paid out of the estate." R. 4:42-9(a)(3). Such
allowance "shall be included in the judgment or order stating the determination." R.
4:42-9(d). "[A] motion for rehearing or reconsideration seeking to alter or amend a
judgment or order shall be served not later than [twenty] days after service of the
judgment or order upon all parties." R. 4:49-2. Although Brewer's counsel fee
application was not technically a motion to rehear or reconsider the court's prior
ruling, "[n]o other rule of court is directly applicable." Ricci v. Corp. Express of the
E., 344 N.J. Super. 39, 47 (App. Div. 2001). In Ricci, we concurred with our holding
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in Czura v. Siegel, 296 N.J. Super. 187 (App. Div. 1997) to the extent that it
interprets the time limitation [Rule] 4:49-2 as applicable to an application for
attorney's fees. Ricci, 344 N.J. Super. at 48. Accordingly, an application is timely
if it was "made within the time constraints established by Rule 4:49-2." Ibid.
The trial court dismissed the amended complaint on August 4, 2017. Brewer's
motion for reconsideration was denied on January 17, 2018. Brewer did not move
for counsel fees either prior to or within twenty days after the dismissal or the denial
of reconsideration. Even if we consider the denial of reconsideration as the starting
point to determine timeliness, the twenty-day filing deadline expired on February 8,
2018. Brewer's application was filed more than four months later on June 11, 2018.
In the interim, on March 2, 2018, Brewer filed an appeal from the dismissal
order. Notably, the notice of appeal was also filed after the twenty-day deadline for
filing the fee application had expired. On July 27, 2018, we remanded the case for
purposes of deciding the fee application.
The trial court denied Brewer's counsel fee application, holding it was time-
barred, citing Franklin Medical Associates. v. Newark Public Schools, 362 N.J.
Super. 494, 516-17 (App. Div. 2003) and Czura, 296 N.J. Super. at 190. The court
noted the Executor and several charitable beneficiaries of the estate had moved for
attorney's fees in a timely fashion while Brewer did not. Her application for
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attorney's fees was filed well more than twenty days after the dismissal was entered.
She did not claim she was somehow unable to meet the filing deadline. We discern
no abuse of discretion.
Brewer moved for reconsideration on three grounds: (1) other judges in the
vicinage had permitted untimely attorney's fee applications in unrelated probate
cases; (2) she was not aware of the twenty-day filing deadline; and (3) she was led
to believe the filing of the appeal tolled the filing deadline.
The motion was opposed by the Executor and the Attorney General. The
Estate argued Brewer did make out a prima facie case for reconsideration and relied
on a certification of Brewer's attorney that was not based on personal knowledge in
violation of Rule 1:6-6. The Attorney General joined in the Estate's objection to the
certification, noting it was "riddled with hearsay legal arguments" and "presents no
admissible facts."
The trial court denied reconsideration. It noted Brewer conceded her fee
application was untimely and she failed to include "a statement of the matters or
controlling decisions which counsel believes the court has overlooked or as to which
it has erred" in her moving papers. R. 4:49-2. Moreover, Brewer did "not claim that
the [c]ourt failed to consider or appreciate probative, competent evidence, or bring
to the [c]ourt's attention any new or additional information which could not have
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been provided on the first application." Nor had Brewer demonstrated "that the
[c]ourt's decision was palpably incorrect or irrational." The trial court noted that the
unreported opinions cited by Brewer were "neither precedential nor binding" and
were "not supportive of her argument."
The trial court also found Brewer "[had] not produced a single credible reason
as to why her application was dilatory for an interests of justice analysis." The court
was unpersuaded by her assertion that it was "overly harsh" to "suddenly impose
such a strict, time sensitive deadline that . . . was never announced to her," noting
the deadline was imposed by court rule. The court found the filing delay was
"excessive by any standard," and was "especially egregious" since Brewer was
represented by counsel, and was on notice that five other counsel fee applications
were timely filed.
We review the denial of reconsideration under an abuse of discretion standard.
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We will not disturb
a trial court's reconsideration decision "unless it represents a clear abuse of
discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015). An abuse of discretion "arises when a decision is made
without a rational explanation, inexplicably departed from established policies, or
rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561,
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571 (2002) (citation omitted). For several reasons, we discern no abuse of discretion.
First, Brewer did not make out a prima facie case for reconsideration. Her moving
papers violated Rule 1:6-6 and did not meet the substantive standards for
reconsideration set forth in Rule 4:49-2. Second, Brewer's reliance on unpublished
opinions was misplaced.4 Third, Brewer's lack of knowledge of the filing deadline
is no excuse, particularly where she was represented by counsel throughout the
proceeding.
We further note that all of Brewer's claims were dismissed. The litigation
she pursued did not advance the interests of the beneficiaries of the Estate or
otherwise create, preserve, or protect the assets of the estate. Even if successful,
the litigation would have benefitted her alone. Fee awards are usually denied if
the party seeking the award was advancing only personal interests. See, e.g., In
re Estate of Silverman, 94 N.J. Super. 189, 195 (App. Div. 1967); Bush v. Riker,
77 N.J. Super. 243, 247 (App. Div. 1962). Moreover, Brewer did not qualify
for an award of attorney's fees pursuant to Rule 4:42-9(a)(2) since her litigation
efforts, if successful, would have redounded only to her own benefit but not the
4
"No unpublished opinion shall constitute precedent or be binding upon any court."
R. 1:36-3. Unreported decisions "serve no precedential value, and cannot reliably
be considered part of our common law." Trinity Cemetery v. Wall Twp., 170 N.J.
39, 48 (2001) (Verniero, J., concurring).
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benefit of others. See Henderson v. Camden Cty. Mun. Util. Auth., 176 N.J.
554, 564 (2003) ("The fund in court exception generally applies when a party
litigates a matter that produces a tangible economic benefit for a class of persons
that did not contribute to the cost of the litigation," but "does not apply whe n a
party litigates a private dispute for its own personal gain" (citations omitted)).
V.
We next address the denial of Gannon's motion to intervene. Gannon
sought to probate an earlier 1992 will that would not disinherit her. She claimed
the 2013 will was invalid on the same grounds raised by Brewer. She also claimed
the 2016 Draft should not be admitted to probate because it was not executed and
did not qualify as a holographic will.
Gannon initially attempted to file a counterclaim. The trial court deemed the
counterclaim procedurally incorrect because she was not a party named in the
complaint. Gannon then moved under Rule 4:85-1 to intervene, contending
intervention was appropriate because her claims and Brewer's claims involved
the same operative facts. We are unpersuaded by this argument.
The trial court denied intervention, concluding there was no underlying
action in which to intervene since Brewer's amended complaint was dismissed
in its entirety with prejudice. The trial court further found the application was
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not made within a reasonable time and characterized Gannon's attempt at
intervention as "an attempt to enter the case through the back door, avoiding the time
limitations of [Rule] 4:85-1." The judge also concluded Gannon's claims were not
aligned with Brewer's, finding the respective relief sought by Brewer and Gannon to
be "profoundly different, and ultimately prejudicial to one another." Therefore,
Gannon's reliance on In re Maxson’s Will, 90 N.J. Super. 346 (App. Div. 1966)
was misplaced.
We discern no abuse of discretion or error by the trial court. The attempt
to file a counterclaim was procedurally incorrect and her intervention was not
permissible because the underlying action was dismissed in its entirety.
Moreover, the record fully supports the trial court's conclusions that: (1)
Gannon did not seek intervention within a reasonable time; (2) her claims
conflicted with Brewer's claims; and (3) the relief they sought was diametrically
opposed.
VI.
Finally, we address Brewer's claim that a change of venue is required to
preserve judicial integrity. We disagree.
A change of venue is warranted "if there is a substantial doubt that a fair and
impartial trial can be had in the county where venue is laid." R. 4:3-3(a)(2). The
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moving party bears the burden of demonstrating good cause for such change.
Pressler & Verniero, cmt. on R. 4:3-3. Brewer has made no such showing.
The remaining arguments raised by Brewer in Point IV of her brief lack
sufficient merit to warrant further discussion in a written opinion. R. 2:11-
3(e)(1)(E).
VII.
In sum, we affirm the dismissal of counts one, two, three and five of the
amended complaint with prejudice. We affirm the dismissal of count four but
modify the dismissal to without prejudice. We affirm the denial of Brewer's
application for an award of attorney's fees and the denial of Gannon's motion to
intervene. The trial court shall issue a modified dismissal order consistent with
this opinion within twenty days.
Affirmed as modified. We do not retain jurisdiction.
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