IN THE MATTER OF THE ESTATE OF ANNIE ROST (18-01409, MERCER COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1807-19
IN THE MATTER OF THE
ESTATE OF ANNIE ROST,
deceased.
________________________
Submitted March 1, 2021 – Decided April 8, 2021
Before Judges Sabatino, Currier, and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Mercer County, Docket No.
18-01409.
Cohn Lifland Pearlman Herrmann & Knopf, attorneys
for appellant Claudia Handwerker (Charles R. Cohen
and Christina N. Stripp, on the briefs).
Fox Rothschild, LLP, attorneys for respondent Deborah
Hospital Foundation (Elizabeth J. Hampton and
Melissa A. Terranova, on the brief).
Philip B. Papier, Jr., attorney for respondent Norman
Rost.
PER CURIAM
Annie Rost died in September 2018, leaving behind a sizeable estate. Her
will, executed in 2002, devised the estate among her four children and to various
charities. It also contained an in terrorem provision that excluded any
beneficiary from the estate if they contested the will. One of the beneficiaries,
Annie's1 daughter, Claudia Handwerker, filed a caveat with the Mercer County
Surrogate's Court six days after her mother's death, protesting the grant of letters
of administration or admitting the will to probate.
The Chancery Division judge found Claudia's caveat constituted a
challenge to the will and that it was brought without probable cause. Therefore,
the in terrorem clause excluded Claudia as a beneficiary and prevented her from
inheriting under the will. Her share of the estate was devised to Deborah
Hospital Foundation (Deborah). We affirm.
Annie's son, (Claudia's brother), Norman, was named as the executor of
Annie's estate under the will. He also was devised Annie's Princeton home.
Several months after the filing of the caveat, Norman filed a certified complaint
and order to show cause to dismiss the caveat and admit the will to probate.
In response, Claudia filed an answer and unverified counterclaim. In her
answer, Claudia "consent[ed] to removing the Caveat, allowing the Will to be
probated and ask[ed] that the relief set forth in the attached counter-claim be
1
As a number of the individuals share a surname, we will refer to them by their
first names. We mean no disrespect.
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granted." In the counterclaim, Claudia objected to "Clause No. [seven] of the
Will giving the Princeton house to my brother" and further objected to his
appointment as executor under the will.
Because the Surrogate did not accept the unverified counterclaim, several
days later Claudia filed a motion seeking leave to file an amended answer and
counterclaim. See R. 4:67-4(a) ("No counterclaim or crossclaim [in a summary
action] shall be asserted without leave of court.").
The amended answer and counterclaim "consent[ed] to removing the
Caveat and allowing the Will to be probated. . . ." It also "object[ed] to Clause
No. [twelve] of the Will appointing Norman Rost, Executor, and Sonya Bradski
as Substitute Executor."2 The answer requested that Claudia be appointed
executor. It further "object[ed] to Clause No. [seven] of the Will giving the
Princeton house to my brother Norman Rost. . . ." Claudia did not verify the
pleadings or provide any certification or affidavits to support her claims.
In March 2019, the Deputy Surrogate held a telephone conference with
the attorneys for Claudia, Norman, and Deborah. Although the Deputy
Surrogate suggested the parties sign a consent order allowing the will to be
2
Sonya was one of Claudia's sisters.
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probated, Claudia's attorney refused to do so unless the will was modified to
contain the conditions listed in Claudia's answer and counterclaim.
Norman's order to show cause was heard on March 27, 2019. Claudia's
attorney told the court Claudia had not seen the will until after she filed her
caveat. Counsel further stated:
Judge, we do not oppose the introduction of this will
today. The provisions of this will, [ninety] percent of
it, my client's okay with. She will withdraw the caveat
which I said in my answer. She will allow the will to
be probated. She will allow the will to proceed. We
are here, Judge, on a motion to allow my counterclaim
to proceed. . . .
In addressing the motion to allow the filing of the amended answer and
counterclaim, Claudia's counsel argued that Norman should not be the executor
of the estate because "he stole about a million dollars from [the] estate. . . ." He
also asserted that the Princeton house should not be given to Norman as
specified in the will, but rather distributed as part of the estate's assets. Counsel
requested time for discovery to prove the alleged claims stating, "I think the heir
should be given the opportunity to prove to this [c]ourt that this executor is not
honest."
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The Chancery judge noted the record before him did not support Claudia's
allegations, nor did she supply a certification in anticipation of the hearing. He
stated:
I don't have anything in support of this counterclaim
today. . . . There's nothing in here to indicate that
there's any fact supporting this. This is a return date on
the order to show cause. This is a summary trial. Since
you already agreed the will could be probated, there's
nothing about the proving of the will that needs to be
tried so there's no discovery required.
In ruling on the order to show cause, the court stated:
This is a summary proceeding pursuant to Rule 4:83-1
which requires all actions and probate to be brought in
a summary manner. With the exception of matters
where there [are] question[s] about the proving of the
will pursuant to [Rule] 4:84-2, the matters in probate
are to be tried in a summary fashion which means trial
on the return date without the need for discovery.
In light of the fact here that there has been agreement
that the will can be probated, there is no issue with
regard to the proving of the will. There has been no
evidence submitted to support the counterclaim. It is
an unverified complaint without any underlying facts.
Therefore, the [c]ourt finds that . . . plaintiff is entitled
to judgment, dismissing the caveat and allowing the
will to be admitted to probate.
I'm denying the application to file the counterclaim in
light of the fact that there is no underlying support for
the counterclaim. So judgment for the plaintiff.
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The court issued a final judgment on March 27, 2019 (amended on March
28, 2019) dismissing Claudia's caveat with prejudice, admitting the will to
probate, and denying Claudia's motion to file a counterclaim. Claudia did not
move for reconsideration or appeal the order.
On April 26, 2019, Claudia filed a verified complaint and order to show
cause demanding an accounting of the estate, the appointment of a temporary
executor and attorney's fees for bringing the action. On May 2, 2019, Deborah
filed a verified complaint to enforce the in terrorem provision of the will.
During oral argument on the orders to show cause on August 23, 2019,
Claudia's counsel argued that Claudia had "never contested this Will. Now, yes,
a caveat was filed. That's admitted. The caveat, when it was filed, she had never
seen the Will. And the caveat was immediately withdrawn when my answer was
filed. So, the caveat is not a contest to the Will." Counsel contended Claudia
had not been given the opportunity to present her argument that she had probable
cause to file the caveat.
The Chancery court made the following findings:
[T]he first issue before the [c]ourt is whether the caveat
serves as a challenge to the Will in this case. And I
would direct the parties to the language in In Re
Stockdale, 196 N.J. 275 (200[8]). There, Justice Hoens
stated, . . . the caveat is the formal mechanism by which
one gives notice of a challenge to a Will that has been
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or is expected to be offered for probate[.] See In Re
Myers' Will, 20 N.J. 228, 235 (1955) (explaining that
standing to lodge caveat requires status as when injured
by probate of the Will being contested); In Re Hand's
Will, 95 N.J. Super. 182, 187, (App. Div. 1967)
(analyzing requirement of injury sufficient for standing
to lodge caveat).
The act of lodging or filing the caveat prevents the
surrogate from issuing letters that otherwise would
operate so as to authorize a particular individual or
entity to begin the administration of the Estate, and
causes the matter to be pursued, generally in a summary
matter by way of an order to show cause and formal
complaint in the Probate Part. See [R.] 4:83-1.
Alternatively, if a Will has already been admitted to
probate, it may be challenged by the timely filing of a
complaint in the Probate Part. See [R.] 4:85-1. . . . A
variety of grounds on which to secure relief are
generally available, the most common of which is the
assertion that the will was the product of undue
influence. [Stockdale, 196 N.J. at 302.]
So, as I said, this matter had previously been before the
[c]ourt back on March 27th. So, the [c]ourt does find
that the filing of a caveat operated as a challenge to the
Will unquestionably, based upon the language from
Stockdale. So, the question is whether or not this
[c]ourt has already made a determination that there was
a lack of probable cause for the caveat. And as I said
during argument, unquestionably, [Claudia] totally
failed to present the [c]ourt with any demonstration of
any admissible support in connection with her caveat.
The [c]ourt made that finding before, that operates as
the law of the case. The [c]ourt finds, therefore, that
pursuant to the statute [ N.J.S.A. 3B:3-47] that there has
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been no showing of probable cause to support the
caveat. Therefore, there is no reason for the [c]ourt to
set aside the in terrorem clause. So, I'm going to enter
judgment in favor of Deborah Hospital.
The court dismissed Claudia's complaint.
The subsequent September 5, 2019 order provided that: (1) Claudia lacked
probable cause to contest the will; (2) the in terrorem clause excluding Claudia
from inheriting under the will shall be enforced; and (3) Claudia's share in the
estate is devised to Deborah.
Claudia moved for reconsideration. She contended that she withdrew the
caveat after she received a copy of the will and that the "only thing I ever
challenged was the Executor's conduct prior to the death and just after our
mother's death." She also certified that on April 26, 2019 she filed a verified
complaint, challenging "Norman's appointment as Executor and . . . provid[ed]
ample probable cause to challenge the appointment of the executor, my brother
Norman Rost."
After oral argument on November 15, 2019, the Chancery judge denied
the motion, stating:
The [c]ourt's decision at the August 23rd hearing was
based upon the [c]ourt's prior decision in which the
[c]ourt granted judgment in favor of the executors [to]
allow the Will to be probated.
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Prior to the complaint having been filed, . . . defendant,
Claudia Handwerker had filed a caveat to the Will. The
caveat was filed on September 18th, 2018 and the
caveat read as follows:
"I, Claudia Joan Handwerker, daughter of Annie Rost
. . . late of the Town of Princeton, County of Mercer,
State of New Jersey, who died on September 12th,
2018, do hereby caveat and protest against the granting
of letters of administration or admitting to probate any
paper purporting to be the Will of Annie Rost, as well
as the appointment of a personal representative of the
Estate of Annie Rost."
That caveat necessitated the filing of the complaint and
order to show cause by the executor to have the Will
admitted to probate and to remove the caveat. As
explained by the [c]ourt, both on the last occasion and
the occasion prior to that, a caveat is a challenge to the
Will and the [c]ourt cited, [In Re Stockdale, 196 N.J. at
275.]
In Stockdale, the Court stated, "A caveat is the formal
mechanism by which one gives notice of a challenge to
a Will that has been or is expected to be offered for
probate."
"The act of lodging or filing the caveat prevents the
surrogate from issuing letters that otherwise would
operate, so as to authorize a particular individual or
entity to begin the administration of the estate and
causes the matter to be pursued generally in a summary
matter by way of an order to show cause and formal
complaint in the probate part[.]" [Id. at 302.]
Now, there's no question in this [c]ourt's mind that trial
courts are obligated to follow the holdings under the
New Jersey Supreme Court. The legal findings and
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determinations of the Supreme Court must be accorded
conclusive weight by the lower courts. See . . . State v.
Breitweiser, [373 N.J. Super. 271, 282-83 (App. Div.
2004).]
"Appellate and trial courts consider themselves bound
by the Court's pronouncements whether classified as
dicta or not[.]" State v. Dabas, 215 N.J. 114, 136-37.
As if the caveat would not have been enough to
demonstrate to the [c]ourt that there was a challenge to
the Will, there was also the answer and amended
answer that were prepared and submitted by defendant,
Handwerker.
On the original answer and counterclaim, Paragraph
[two] of the counterclaim reads as follows[:] "I object
to Clause Number [seven] of the Will giving the
Princeton house to my brother Norman Rost, for
reasons set forth below."
Additionally, on the amended answer and counterclaim,
Paragraph [three] of the counterclaim reads as
follows[:] "I object to Clause Number [seven] of the
Will giving the Princeton house to my brother Norman
Rost, for reasons set forth below."
So, this already had been discussed at the time of . . .
the original order to show cause by the executor to
probate the Will. There was no evidence at all
submitted by [d]efendant Handwerker. So, there was
no demonstration of any justification whatsoever for
the filing of the caveat.
Thus, when Deborah Hospital filed its complaint and
order to show cause, it would have been an exercise in
futility for the [c]ourt to have to go back and re-
examine the record in light of the fact that defendant
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Handwerker failed to present the [c]ourt with any facts
supporting her caveat at the time of the first return date.
So, for these reasons, the [c]ourt finds that there was no
justification for reconsideration of the [c]ourt's decision
and the [c]ourt will deny the motion for
reconsideration.
The court memorialized its decision in a December 3, 2019 order.
We review the denial of a motion for reconsideration for an "abuse of
discretion." Cummings v. Bahr, 295 N.J. Super 374, 389 (App. Div. 1996)
(citation omitted). In reviewing a summary action conducted pursuant to Rule
4:67, we accord findings made by the trial judge as binding when supported by
adequate, substantial and credible evidence. Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). However, a trial judge's
"interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference" and are subject to de novo review.
Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010).
On appeal, Claudia argues that her caveat was not a challenge to Annie's
will. She argues that the court ignored her proofs at the August 23, 2019 hearing
and again erred in denying her motion for reconsideration. We are not
persuaded.
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Six days after her mother's death, Claudia filed the following letter with
the surrogate's court:
I, Claudia Joan Handwerker, Daughter of Annie Rost,
late of the town of Princeton, County of Mercer, State
of New Jersey, who died on September 12, 2018, do
hereby caveat and protest against the granting of Letters
of Administration, or admitting to probate any paper
writing purporting to be the Will of Annie Rost, as well
as the appointment of a personal representative of the
Estate of Annie Rost.
[(Emphasis added).]
Norman and Deborah assert that this caveat invoked Paragraph Fourteenth
of Annie's will, which stated:
Any beneficiary under this, my Will, who shall
institute, prosecute or abet any action to contest or to
set aside in whole or in part this, my Will, shall be
excluded from any share or interest in my estate, and I
hereby direct that the property or interest to which he
or she might otherwise have become entitled shall be
devised to DEBORAH HOSPITAL FOUNDATION,
for general purposes, absolutely and in fee simple, with
the exception that the devises under Paragraphs
Seventh and Eighth would become part of my residuary
estate and distributed pursuant to Paragraph Ninth.
Claudia contends she did not intend to "contest" the will and therefore Paragraph
Fourteenth was not triggered.
An uncontested, straightforward will may be admitted to probate through
the Surrogate's Court. However, "if a caveat has been lodged against the will
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offered or expected to be offered for probate, the Surrogate's Court is not
empowered to act and the issues must instead be resolved through proceedings
in the Superior Court, Chancery Division, Probate Part. . . ." Stockdale, 196
N.J. at 302. See R. 4:83-1.
As our Supreme Court has stated, "A caveat is the formal mechanism by
which one gives notice of a challenge to a will that has been or is expected to be
offered for probate." Ibid.The act of lodging, or filing, the caveat prevents the
Surrogate from issuing letters that otherwise would
operate so as to authorize a particular individual or
entity to begin the administration of the estate and
causes the matter to be pursued, generally in a summary
manner, by way of an order to show cause and formal
complaint, in the Probate Part.
[Ibid.]
Claudia filed the caveat and refused to withdraw it before litigation
ensued. Therefore, as required by Rule 4:83-1, Norman was compelled to
commence suit in the Probate Part to dismiss the caveat and admit the will to
probate. He filed an order to show cause and a complaint in a summary manner
pursuant to Rule 4:67, returnable March 27, 2019. The order to show cause
requested the court dismiss the caveat filed by Claudia with prejudice and file
and record Annie's will with the Surrogate's Court.
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In response, Claudia filed an unverified answer in which she – at that point
– consented to the removal of the caveat and allowed the will to be probated.
However, in her counterclaims, Claudia objected to Paragraph Twelfth of the
Will, in which Norman and Sonya were named executors. She asked that she be
named executor instead. She also objected to Paragraph Seventh, under which
Annie's home was devised to Norman.
Claudia's argument that the caveat was not a challenge to the will is
without merit. Although, upon being sued, she agreed to withdraw the caveat,
she continued to object to and contest the will. Despite her contention that she
withdrew her caveat, her counterclaims clearly attempted to "contest or to set
aside in whole or in part" the provisions laid out in Annie's will, in violation of
Paragraph Fourteenth.
As we are satisfied the Chancery court did not err in finding the caveat
operated as a challenge to the will, we must then consider whether the court also
properly found there was no probable cause to support the caveat. Claudia
contends she presented "substantial evidence that her actions were supported by
probable cause" and therefore the in terrorem clause is not enforceable. She also
asserts she was deprived of her due process rights when the court failed to
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conduct an evidentiary hearing to determine whether she had probable cause to
file the caveat.
As stated, once Claudia filed her caveat, the Probate Part of the Chancery
Division had jurisdiction over the matter. And, as required under Rule 4:83-1,
"all actions in the Superior Court, Chancery Division, Probate Part, shall be
brought in a summary manner by the filing of a complaint and issuance of an
order to show cause pursuant to [Rule] 4:67." "Summary actions are, by
definition, short, concise, and immediate, and further, are 'designed to
accomplish the salutary purpose of swiftly and effectively disposing o f matters
which lend themselves to summary treatment.'" MAG Entm't LLC v. Div. of
Alcoholic Beverage Control, 375 N.J. Super. 534, 551 (App. Div. 2005) (quoting
Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997)).
If a court is satisfied that a plaintiff's application is sufficient, the court
"shall order the defendant to show cause why final judgment should not be
rendered for the relief sought." R. 4:67-2. "The court shall try the action on the
return day" and if "the affidavits show palpably that there is no genuine issue as
to any material fact, the court may try the action on the pleadings and affidavits
and render final judgment thereon." R. 4:67-5. "If any party objects to such a
trial and there may be a genuine issue as to a material fact, the court shall hear
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the evidence as to those matters which may be genuinely in issue and render
final judgment." Ibid.Norman filed a verified complaint and order to show cause to dismiss the
caveat and admit the will to probate pursuant to Rule 4:83-1. In response,
Claudia filed an answer and counterclaim and a subsequent amended answer and
counterclaims. All of the submitted and proffered pleadings were unverified.
At the hearing on the return date of the order to show cause, March 27,
2019, Claudia sought the court's leave to file her amended answer and
counterclaim. Her attorney stated, "[w]e want to correct some . . . things in the
will" and "prove that this executor is not honest enough to conduct the job."
Claudia's counsel admitted that "[t]hese are allegations, Judge." Moreover,
during argument on the motion for reconsideration, Claudia's counsel candidly
admitted: "[W]e didn't offer anything in March to support our caveat. We didn't
offer any probable cause in March. We didn't really come up with anything in
March. That's all true Judge."
Based on the record before us, Claudia was accorded adequate due
process. Norman's complaint and order to show cause were brought as a
summary action under Rule 4:83-1. The court properly tried the action on the
return day pursuant to Rule 4:67-5. Claudia had the burden to produce evidence
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to the court to establish why Norman's requested relief should not be granted.
Because Norman sought to admit the will in its entirety and Claudia challenged
two provisions of the will, it is clear Claudia continued to contest the will and,
therefore, she was required to show probable cause to support her caveat on the
return date.
Claudia did not do so. She did not present any verified pleadings,
affidavits, or certifications to rebut the complaint. To the contrary, even six
months after the filing of the caveat, on the day of trial of the summary action,
her attorney requested time and discovery to prove her allegations. Because
there was "no genuine issue as to any material fact," the court properly decided
the action on the pleadings. See R. 4:67-5.
N.J.S.A. 3B:3-47 provides that "[a] provision in a will purporting to
penalize any interested person for contesting the will or instituting other
proceedings relating to the estate is unenforceable if probable cause exists for
instituting proceedings." See Haynes v. First Nat. State Bank of N.J., 87 N.J.
163, 189 (1981) ("We . . . decline to enforce an in terrorem clause in a will or
trust agreement where there is probable cause to challenge the instrument.").
Following the August 23, 2019 arguments, the court found Claudia did
not present any evidence to support her challenge to the will at the March 27
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hearing on the order to show cause. The court affirmed its decision that the
caveat was a challenge to the will during the arguments on Claudia's motion for
reconsideration. The judge stated:
As if the caveat would not have been enough to
demonstrate to the [c]ourt that there was a challenge to
the Will, there was also the answer and amended
answer that were prepared and submitted by defendant,
Handwerker.
On the original answer and counterclaim, Paragraph
[two] of the counterclaim reads as follows[:] "I object
to Clause Number [seven] of the Will giving the
Princeton house to my brother Norman Rost, for
reasons set forth below."
Additionally, on the amended answer and counterclaim,
Paragraph [three] of the counterclaim reads as
follows[:] "I object to Clause Number [seven] of the
Will giving the Princeton house to my brother Norman
Rost, for reasons set forth below."
So, this already had been discussed at the time of . . .
the original order to show cause by the executor to
probate the Will. There was no evidence at all
submitted by [d]efendant Handwerker. So, there was
no demonstration of any justification whatsoever for
the filing of the caveat.
Thus, when Deborah Hospital filed its complaint and
order to show cause, it would have been an exercise in
futility for the [c]ourt to have to go back and re-
examine the record in light of the fact that defendant
Handwerker failed to present the [c]ourt with any facts
supporting her caveat at the time of the first return date.
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So, for these reasons, the [c]ourt finds that there was no
justification for reconsideration of the [c]ourt's decision
and the [c]ourt will deny the motion for
reconsideration.
The absence of probable cause for the filing of the caveat requires the
enforcement of the in terrorem clause as a matter of law. The trial court properly
found that Claudia's caveat was an action challenging the will in derogation of
the in terrorem clause under Paragraph Fourteenth of Annie's will.
Any claims not addressed lack sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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