In the Matter of the Estate of James G. Martin ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1772-21
IN THE MATTER OF
THE ESTATE OF
JAMES G. MARTIN,
deceased.
___________________
Submitted December 13, 2023 – Decided January 11, 2024
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
P-000399-20.
Buchan, Palo & Cardamone, LLC, attorneys for
appellants James H. Martin, Michael P. Martin and
Ann Martin (Stephanie Palo and David R. Cardamone,
on the briefs).
Drazin and Warshaw, PC, attorneys for respondent
Therese Rogers (Ralph E. Polcari, on the brief).
PER CURIAM
James H. Martin (Jimmy), Michael P. Martin (Mickey) and Ann P.
Martin appeal the Probate Part's January 27, 2022 order admitting the March
29, 2019 Will of the decedent, their father James G. Martin, to probate and
dismissing their complaint alleging undue influence by their sister, Therese
Rogers, the named executor and nearly sole beneficiary of the 2019 Will. 1 We
reverse.
Although the parties disagree on almost every critical point, they do not
dispute the following facts, which provide the backdrop of this will contest.
The decedent and his first wife had six children, Jimmy, Mickey, Ann,
Thomas, Nora and Therese. Their mother died in 1991, and their father
married his second-wife, Louise, later that year. Neither Nora nor Therese got
along with Louise, and thus were estranged from their father for a significant
part of the twenty-seven years of his second marriage. A Will executed by the
decedent in 2017, the year before Louise's death, provided her a life estate in
decedent's home, with all related expenses to be paid by his estate during her
residence; left the contents to her outright; directed a $10,000 specific bequest
to Louise's daughter, the named executor; and divided the remainder, twenty
percent each to Jimmy, Mickey, Thomas and Ann, with the remaining twenty
1
Because several of the parties share the same family name, we refer to them
by their given names for clarity and convenience, intending no disrespect. We
note that Thomas, although originally a plaintiff in the action, was no longer a
party at the time judgment was entered.
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percent to be split between two grandchildren. The decedent specifically
directed that neither Nora nor Therese should receive any share of his estate.
A month after Louise's death in October 2018, Jimmy contacted Barbara
Downs McNulty about preparing a new Will for his father, who was then
ninety-four years old. Neither the decedent nor Jimmy knew McNulty, who
had purchased the law practice of decedent's prior attorney. Jimmy took his
father to McNulty's office to discuss the provisions of a new Will, which was
executed two days later.
The November 2018 Will contained a specific $10,000 bequest to Jimmy
for his assistance to the decedent "financially with the payment of my
mortgage and other bills during my lifetime"; and divided the remainder of the
estate, twenty-two-and-one-half percent each to Jimmy, Mickey, Thomas, and
Ann, with the remaining ten percent to Ann's son, Dutch, who, like the
decedent, had served in the military and was close to his grandfather. As with
his 2017 Will, the decedent did not provide for Nora and Therese in his 2018
Will.
The parties do not dispute that Jimmy, a physician employed by the
Department of Veteran's Affairs in Chicago, had provided his father $10,000
for dental work, given him two Lincoln autos over the years and in August
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2018, began depositing $400 a month into his father's bank account to assist
him in making monthly payments on a $100,000 home equity line of credit.
Jimmy also arranged for his father's home health care benefits through the VA,
including aides three or four days a week and the installation of a wheelchair
ramp. Jimmy also built a disabled shower unit for his father and arranged for
home visits by a physician assistant affiliated with the decedent's doctor.
Shortly after executing his 2018 Will, the decedent suffered a fall and
was hospitalized until Christmas. Both Therese and Nora visited their father in
the hospital, the first either had seen him in years. On December 28, days after
the decedent returned home, Jimmy suggested to his father that he consider
adding Therese and Nora to his Will, treating them as he did the rest of his
children. The decedent agreed and Jimmy emailed McNulty at his father's
request that his father wanted Nora and Therese included in the Will, and that
Ann's share should go to her son, Dutch.
Although Jimmy had been providing for his father's care with the
assistance of the VA nurses during Louise's last illness and after her death, his
father required round-the-clock care after his release from the hospital. Jimmy
asked his sisters for help. Therese volunteered to move in and care for their
father with Jimmy and Ann's help, while retaining the services of the VA nurse
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aides. Jimmy instructed Therese how to provide their father his insulin
injections and maintain his catheter and also showed her how to care for the
pressure sores he'd acquired during his long hospital stay.
The plan quickly went off the rails, however. After Jimmy returned
from a week in Chicago in mid-January 2019, he and his father had an
argument, with the decedent angrily telling Jimmy that he would never have
been a doctor if it wasn't for decedent. That same day, the decedent called
McNulty to say he wanted Jimmy removed from his Will because "he's a
crook." Two days later, Therese and Ann accused Jimmy to their father of
touching them inappropriately when they were children. Jimmy denied it, and
he claims Ann has since recanted the allegation, but Therese, who had
previously made Jimmy her daughter's godfather, continued to insist it was
true. Jimmy packed his things that afternoon and returned to Chicago, never
seeing or speaking to his father again.
Within a week, the decedent had revoked Jimmy's power-of-attorney and
executed a new durable power making Therese his attorney-in-fact. McNulty's
notes of a meeting she had with the decedent at his home on January 18 reflect
the decedent's belief that Jimmy had "done questionable things" since decedent
had last met with McNulty, that the decedent "found out things" through
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review of his Chase banking records, and that he believed "Jimmy will go to
Social Services to have [the] house taken away." The notes also reflect the
decedent's feeling that "Therese has done great/everything for [the decedent]
since Xmas. And Ann has helped."
The decedent thereafter had conversations and meetings with McNulty
about a new Will. Although he never wavered about disinheriting Jimmy, he
was not sure about how to otherwise devise his assets. McNulty's notes from a
telephone call with the decedent on January 25 reflect he was still uncertain
about the distribution of his estate and needed more time to consider the
changes he wanted in his Will. He told McNulty he didn't want to give money
"to his daughter [Ann] because she was on SSD (Social Security disability),"
and that "Mickey can't accept [a bequest] because he owes the hospital"
money.
McNulty's notes from a February 26 meeting state the decedent told her
"[h]e has a line of credit for $100k," which he had drawn down completely to
re-shingle the roof, repair the driveway, paint and buy a car for Louise. The
notes also reflect the decedent told McNulty that "Therese and her husband
will pay off the line of credit . . . when [the] house sells," that "Nora doesn't
want anything" so he would exclude her, that he is "very, very angry" at
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Jimmy and doesn't "want to give him anything," that Mickey "owes Freehold
Hospital a lot of [money] so [he didn't] want to give him anything," and that
the decedent was "most concerned about Therese — as she [was] caring for
him" and "gave up a job to come here." Those notes end with the notation that
decedent "wasn't 100% sure what he wanted to do and he [would] call
[McNulty] next week with his decisions."
McNulty received an email on March 1 from Therese with the re line:
"Jims will . . . again." The message states "You must think we are nuts. . . .
But we have it figured out . . . when ever you get a chance if you can call, or
come by. . . . I promise its going to be quick and easy. . . ." McNulty also
received a telephone message on March 6 from Thomas reporting "Family
came to a simple agreement re [the decedent]."
The following day, Therese had a conference alone with McNulty in her
office. Therese provided McNulty a writing, which Theresa claimed was
dictated to her by her father, which left virtually his entire estate to her.
McNulty's notes reflect Therese's feeling "that Louise's kids bought houses
around the time her Dad took the $100,000 . . . loan out on [the house]," and
that her father wanted "to give Therese everything and $100 to each of his
[other] kids" and nothing to any of the grandkids because "[Jimmy] molested
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Therese and Ann." McNulty's notes further reflect Therese's statement that
"[e]ach of [the decedent's] other kids (other than Tommy) own their own
houses outright and have their own [money]," whereas "Therese never had a
house" and "each of Therese's sisters had a wedding that Dad paid for, and Dad
didn't even come to Therese's wedding."
McNulty's notes reflect a telephone conference with the decedent the
following day in which he confirmed he wanted to leave his house and all his
property to Therese "because Therese is taking very good care of [him]" and
would give the rest of his five children and his grandson Dutch $100 each.
McNulty wrote in her notes that the decedent "was very certain with what he
said above" and "repeated the above several times." Therese picked up the
final draft of the Will from McNulty's office on March 20, hand-delivering it
to her father for his review.
The decedent executed the new Will on March 29, 2019, making specific
bequests of $100 each to Jimmy, Mickey, Thomas, Ann, Nora, and his
grandson Dutch, leaving the remainder of his estate to Therese, whom he also
named his executor.
The matter was tried for two days before the Probate Part, with the court
hearing testimony from Jimmy, Mickey, Nora, Therese and McNulty.
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Following receipt of the testimony and written summations, the judge put an
opinion on the record explaining his reasons for finding plaintiffs had not
sustained their burden of proof on their complaint to void the 2019 Will.
The judge summarized the testimony to be that Jimmy, a medical doctor,
had taken care of his father a "great deal" and tried to help him by making
several "changes to the house in order to make his father more comfortable"
and had what was testified to as a "close relationship with his father." The
judge noted the allegations against Jimmy by Therese, which "Jimmy
vehemently denied," and the emotional falling out between Jimmy and his
father in January 2019 being so significant that Jimmy left, never to see or
speak to his father again, and that the decedent referred to Jimmy "at various
times in various communications" thereafter, particularly with McNulty, "as a
crook," who "didn't deserve to be his son."
The judge focused his opinion almost exclusively on McNulty's
testimony, which was largely based on contemporaneous notes she'd made of
her meetings and phone conversations with the decedent and others. The judge
mentioned notes McNulty took of an unsolicited telephone conversation with a
lawyer on January 15, 2019, who claimed to be familiar with the decedent and
had drafted several wills for him. McNulty testified she wasn't sure why the
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lawyer telephoned her, other than to provide her some background on the
family, the members of which "did not get along" according to him.
The lawyer expressed the view that Jimmy, who in the lawyer's view
was "[t]he only one [of the decedent's children] that has the resources,
financial and otherwise, and the intellect to help" the decedent, had become
more involved in his care, and that "one of his daughters" was "living with
him" in his house. The lawyer told McNulty the decedent could be mercurial
and "gets fixed in his mind about . . . disinheriting." Most recently, the lawyer
said the decedent had telephoned him repeatedly, adamant that he wanted to
disinherit Jimmy, completely contrary to the 2018 Will, which the lawyer had
reviewed, over "a beef" between the two. The lawyer refused to prepare a new
will for the decedent, and suggested McNulty "get the true intention here."
The lawyer signed off saying he would call the decedent to tell him he had
spoken to McNulty.
The judge laid out the timeline of events between McNulty's first contact
with Jimmy in November 2018 through the execution of the decedent's last
Will in March 2019, which the judge found reflected "a strong-willed
individual who maintained control over his assets and properties and appears
to have given substantial thought to his Will, what should happen to his
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property and those thoughts frequently changed." The judge found the lawyer
who made the unsolicited call to McNulty "appears" to have had "a credible
and accurate" view of the "volatile dynamic" of this family.
The judge found McNulty testified "credibly" about the "written note
and communication [she received] on March the 7th" and the phone
conversation she had the following day with the decedent "confirming that the
contents of the writing was what he wanted, not what someone else wanted.
And that it was his desire reflected in the written note." The judge found
McNulty testified "credibly and believably" that when she met with the
decedent on March 29th to execute his Will, "the decedent was lucid, in
control of his faculties and that he was making a decision based on what he
wanted and not under the influence of anyone, particularly not under the
influence of Therese." Finding "the evidence clear . . . that the Will executed
on March the 29th of 2019 [was] not the product of undue influence ," the
judge discharged the caveats and admitted the Will to probate to be
administered by Therese as the decedent's executor.
Plaintiffs appeal, contending the Probate judge failed to engage in a
burden-shifting analysis in determining whether the decedent's Will was a
product of undue influence, that the judge erred "by appearing to rely on the
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testimony of a single witness," McNulty, and failing to consider the testimony
of the other witnesses, and thus abused his discretion in determining the 2019
Will was not the product of undue influence. We agree on all points.
Analysis of a claim of undue influence, that is "'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,'" in the
disposition of his assets, Haynes v. First Nat'l State Bank, 87 N.J. 163, 176
(1981) (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)), follows
a well-established paradigm. "The burden of establishing undue influence
rests with the party contesting the will," In re Estate of Folcher, 224 N.J. 496,
512 (2016), "unless 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 Will of
Rittenhouse, 19 N.J. 376, 378-379 (1955). When there is a confidential
relationship, that is "where trust is reposed by reason of the testator's weakness
or dependence or where the parties occupied relations in which reliance is
naturally inspired or in fact exists," In re Estate of Hopper, 9 N.J. 280, 282
(1982), and suspicious circumstances, "which need only be slight," a
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presumption of undue influence arises, and the burden of proof shifts to the
proponent of the will "to overcome the presumption," In re Estate of
Stockdale, 196 N.J. 275, 303 (2008), ordinarily by a preponderance of the
evidence, Haynes, 87 N.J. at 177-78.
As the Supreme Court noted over fifteen years ago, "the burdens of
proof and the issues to be considered" in an undue influence case "have been
firmly established in our case law." Stockdale, 196 N.J. 275, 302. There is in
the Probate judge's opinion here, however, no discussion of this analytical
framework. Therese contends we can infer the judge applied a presumption of
undue influence by his statement that the decedent being "in an infirm state
physically," when he considered the beneficiary changes he ultimately made in
March 2019, a period in which he was being cared for by Therese, "certainly
gives rise to a reasonable suspicion that this will was the product of undue
influence."
Those remarks, however, were made by the judge in explaining his
reasons for a fee award to plaintiffs, not the rejection of their undue influence
claim. Addressing the undue influence claim, the judge found plaintiffs had
failed to sustain their burden of proof, and their complaint was without merit.
Although we acknowledge it might be possible to make the inference Therese
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urges, we are reluctant to do so as the court omitted entirely any discussion of
the role Therese played in the changes to her father's Will, and the cases make
clear "the mere existence of family ties does not create . . . a confidential
relationship." Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 401-
402 (App. Div. 2007) (quoting Vezzetti v. Shields, 22 N.J. Super. 397, 405
(App. Div. 1952)).
It goes without saying that neither the parties nor a reviewing court
should have to guess at which side the judge assigned the burden of proof in an
undue influence case, given the profound effect it can have on the outcome.
See In re Week's Estate, 29 N.J. Super. 533, 540 (App. Div. 1954) (noting "[i]n
a case where the evidence raising up the presumption of undue influence
weighs heavily in the balance of proofs, the evidence upon which proponent
relies must, if he is to succeed, be of greater weight."). Here, our study of the
judge's decision leaves us genuinely uncertain whether the judge found
plaintiffs failed to muster sufficient evidence to give rise to a presumption of
undue influence or whether he found Therese had amassed sufficient evidence
to rebut it. We conclude the judge's factual findings are woefully inadequate
either way.
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It is axiomatic that "[t]he findings of the trial court on the issues of
testamentary capacity and undue influence, though not controlling, are entitled
to great weight since the trial court had the opportunity of seeing and hearing
the witnesses and forming an opinion as to the credibility of their testimony."
Gellert v. Livingston, 5 N.J. 65, 78 (1950). "An appellate court is bound by
the trial judge's determination of credibility and those findings of fact which
are reasonably supported by the record." C.B. Snyder Realty, Inc. v. BMW of
North America Inc., 233 N.J. Super. 65, 69 (App. Div. 1989). Where,
however, "the focus of the dispute is not on credibility but, rather, alleged
error in the trial judge's evaluation of the underlying facts and the implications
to be drawn" from those facts, "the appellate function broadens somewhat."
Ibid. That's the case here.
We have no quarrel with the judge's finding that McNulty was a credible
witness, sincere in her belief that the decedent was not the victim of undue
influence in connection with the execution of his 2019 Will. But the judge
viewed her testimony uncritically, to the point of obscuring through his use of
the passive voice that the "written note and communication" McNulty
"received" on March 7 stating that the decedent was leaving virtually his entire
estate to Therese was a document written by Therese, which she hand-
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delivered to McNulty when the two met alone to discuss the decedent's Will, a
fact one might think deserved more scrutiny. See Haynes, 87 N.J. at 179-80.
The judge also failed to consider that McNulty had met and spoken with
the decedent only about a dozen times from their first meeting in November
2018 through execution of the decedent's Last Will in 2019. She did not
possess the advantage of assessing an elderly client in the way a lawyer who
had represented the client over many years or decades would have. McNulty
inherited the decedent as a client when she bought his former lawyer's practice.
And although the court focused in on the unsolicited call McNulty received
from a lawyer for a reason she could not work out, terming his assessment of
the decedent and the family dynamic "credible and accurate," we think the call
had greater meaning and a fairly obvious purpose.
McNulty testified she "was a little surprised" by the call and "just wasn't
sure why [the lawyer] was calling" her. She concluded the lawyer "just
seemed to be telling me whatever was going on, kind of thing. That's how I
took it." McNulty's notes, however, reflect the lawyer provided his name, his
firm's name, and the nature of his practice. He told her he'd drafted several
wills for the decedent in the past and had reviewed the Will McNulty drafted
for him in 2018. The caller obviously knew the decedent and his family well,
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mentioning the recent dispute with Louise's children over payment of her
funeral expenses and the "beef" between Jimmy and his father.
McNulty's notes reflect the lawyer told her the decedent had "been
calling [the lawyer] repeatedly" about wanting to "disinherit Jimmy → which
is totally contrary to his 11/2018 Will → why." Critically, the lawyer told
McNulty, and apparently the decedent, that he was unwilling to prepare a new
Will for the decedent. Besides expressing the view that Jimmy was the only
one of the decedent's children with the resources to help him and that Jimmy
had been more involved in his father's care, the lawyer also mentioned that one
of the decedent's daughters was living with decedent, and that "BDM (Barbara
Downs McNulty) [needed] to get the true intention here."
Asked at trial what she understood after that call "needed to be done for
[her] client in revising his Will," McNulty answered "I don’t know, it says [the
lawyer] will call [the decedent]. I don't know if he ever did. I mean, I don't
know, I got the impression that he was just calling to sort of . . . . talk[] about
the family dynamics and disinheriting and, you know." Asked whether the
note "BDM to get the true intention here," was McNulty "indicating [she]
wanted to get the true intention, she replied "No, no, I just was writing down
what — what [the lawyer] was saying."
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We agree with the Probate judge that the purpose of the call was to
provide McNulty a sense of the volatile family dynamic. But it also appears
the lawyer was offering her a friendly word of caution about the things the
decedent would "get fixed in his mind" and to advise her to be sure she
understood before preparing the decedent's Will — a task the caller declined to
take on — what the decedent's "true intention" was in wishing to change the
Will he'd signed only two months before to disinherit the child who'd been
most involved in his care and, at least to the lawyer, appeared the only one
with the resources and intellect to assist him going forward.
McNulty, however, never probed the decedent's reasons for the dramatic
changes he was making to his Will. She never asked the decedent why he
thought Jimmy was a crook, what the decedent had seen in the Chase banking
records that led him to believe Jimmy had mishandled his finances or done
"questionable things" or why he believed Jimmy intended to "go to Social
Services to have [the] house taken away." McNulty also never asked why the
decedent would disinherit Mickey over unpaid hospital bills, and who told him
Mickey had outstanding hospital bills. The trial judge never discussed those
questions in his opinion, notwithstanding the evidence at trial revealed no
irregularities in the decedent's finances, no evidence of any report to Social
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Services and that Mickey, albeit hospitalized for a time in 2017, appears never
to have had outstanding medical bills.
The trial judge didn't comment on that evidence or on the credibility of
any witness other than McNulty. Most significantly, the judge did not
comment on Therese's testimony or credibility, notwithstanding the many
instances in which her trial testimony was at odds with her answers to
interrogatories and her testimony at deposition. Most notably, Therese
claimed both in answers to interrogatories and in a certification she filed in
opposition to plaintiffs' application for an order to show cause that she never
discussed the contents of her father's 2019 Will with him and only learned
after it was signed that her father had made her the virtual sole beneficiary of
his estate. As Therese was forced to admit at trial, her averments were not
true.
Therese also denied in her answers to interrogatories sending any texts
or email messages to anyone about the terms of the decedent's Will, statements
she was forced to retract at trial after being confronted with texts and email
exchanges with Ann and Thomas, some of which referenced "an agreement" as
to the terms of the Will. Therese was also forced to concede that she'd had
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several conversations with Ann, Nora and Thomas and their father about the
terms of the Will, notwithstanding her previous averments to the contrary.
Prior to trial, Therese also denied, or didn't recall, the private meeting
she had with McNulty to discuss her father making her his sole beneficiary.
And although McNulty testified the decedent told her he had drawn down the
entire $100,000 line of credit for home renovations and a car for Louise,
McNulty's notes of that meeting state "Therese feels that Louise's kids bought
houses around the time her Dad took the $100,000 loan out on the house."
Therese testified her father directed her to say that, and he had her "look up"
whether Louise's children had purchased homes around the time he took out
that loan.
Therese also testified she assisted her father in hiring a handwriting
expert around the time the 2019 Will was signed to determine whether Louise
"had been stealing money from him." Although Therese denied her father was
"becoming paranoid . . . about what was happening with his finances," she
claimed what "woke him up" was noticing "a lot of money in his account" after
Louise's death, at a time "when Jimmy was in charge of all [the decedent's]
banking." According to Therese, the decedent asked her "to get his old books,
and that's when we noticed" Louise "was writing checks every week, 750, 600,
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lots and lots of money." Therese claimed the decedent confronted Louise's son
about her having "forged a lot of checks," and when Therese presented copies
"of the check, the receipt, whatever," to him at her father's request, Louise's
son told the decedent, "you need to ask Jimmy about that." As already noted,
there was no evidence presented at trial of any irregularities in the decedent's
finances.
We express no view on the credibility of any of the witnesses or on the
testimony they offered. These cases are exquisitely fact-sensitive, and we
have long recognized that "[n]ot all influence is undue influence." Gellert, 5
N.J. at 73. We note only that reasoned fact finding requires the trier of fact to
weigh conflicting evidence, not ignore it or explain it away by refusing to
acknowledge its import for proof of a proposition or its defense. See Pioneer
Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 339 (App. Div. 1978)
(reversing findings in a bench trial based on the trial court's failure to
"properly evaluate significant evidence," resulting in "manifestly erroneous"
inferences from the evidence), aff'd, 78 N.J. 320 (1978). The Probate judge's
failure to address the significant conflicting evidence in this record, to make
credibility findings, and to "show his work" by explaining how he applied the
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burden-shifting paradigm in this undue influence case, convince us the
judgment cannot stand.2 3
We thus reverse the order admitting the Will to probate, reinstate the
complaint and remand for further proceedings consistent with the views
expressed herein. We do not retain jurisdiction.
Reversed and remanded.
2
We decline plaintiffs' request that we exercise original jurisdiction to bring
the matter to conclusion. "Appellate review . . . 'does not consist of weighing
evidence anew and making independent factual findings; rather, our function is
to determine whether there is adequate evidence to support the judgment
rendered' by the trial court." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,
302 (App. Div. 2009) (quoting Cannuscio v. Claridge Hotel & Casino, 319
N.J. Super. 342, 347 (App. Div. 1999)).
3
To best preserve for the parties the assurance of a fair and impartial hearing,
we direct the matter be heard by a different judge on remand. See P.T. v.
M.S., 325 N.J. Super. 193, 221 (App. Div. 1999).
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