In the Matter of the Estate of Ngan Lau Kwan Seto ( 2024 )


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  •                              NOT FOR PUBLICATION WITHOUT THE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-2985-21
    IN THE MATTER OF THE
    ESTATE OF NGAN LAU
    KWAN SETO, deceased.
    Argued April 17, 2023 – Decided February 12, 2024
    Before Judges Gooden Brown and DeAlmeida.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Middlesex County, Docket No.
    266784.
    James M. Nardelli argued the cause for appellant
    Steven Kwan (Parsons & Nardelli, attorneys; James M.
    Nardelli, on the briefs).
    Roy Joseph Thibodaux, III, argued the cause for
    respondent Dr. Peter Kwan (Berkowitz, Lichtstein,
    Kuritsky, Giasullo & Gross, LLC, attorneys; Roy
    Joseph Thibodaux, III, on the brief).
    The opinion of the court was delivered by
    DeALMEIDA, J.A.D.
    Petitioner Steven Kwan appeals from two orders of the Chancery
    Division: (1) the October 12, 2021 order granting summary judgment to
    defendant Peter Kwan in this will contest; and (2) the April 25, 2022 order
    denying Steven's application for the decedent's estate to be charged for his
    attorney's fees and costs. 1 We affirm.
    I.
    The following facts are derived from the record. Ngan Lau Kwan Seto
    (decedent) had four children: Peter, her eldest son, Steven, Nancy Young, and
    Lisa Palestine.
    In 1980, decedent purchased real property in Woodside, New York (the
    Woodside property). In 1985, she transferred the Woodside property from
    herself to herself, Peter, and Steven as joint tenants with a right of survivorship.
    In 1988, decedent, Peter, and Steven purchased real property in South
    Plainfield (the South Plainfield property) as co-owners. In 1993, decedent and
    Steven transferred their interest in the South Plainfield property to Peter and his
    spouse. According to Steven, the transfer to Peter was pursuant to an agreement
    in which he would release his interest in the South Plainfield property in
    exchange for Peter's release of his interest in the Woodside property.
    1
    Because the parties share a surname we refer to them by their first names. No
    disrespect is intended.
    A-2985-21
    2
    In 1995, as part of a refinancing transaction on the Woodside property
    sought by decedent and Steven, a mortgage lender required that Peter be
    removed as a joint tenant with a right of survivorship. Steven conceded that
    unless Peter agreed to the change in ownership, he and decedent would have
    been unable to refinance the mortgage.
    Steven identified and retained an attorney to prepare a deed transferring
    ownership of the Woodside property from decedent, Peter, and Steven to
    decedent and Steven. Decedent, Peter, Steven, the attorney retained by Steven,
    and a notary public were in attendance when the deed was executed by decedent,
    Peter, and Steven. The face of the deed in the record plainly transfers the
    Woodside property to decedent and Steven as tenants in common. The deed
    does not include language regarding a joint tenancy with a right of survivorship.
    There is handwriting on the deed that identifies the parties to the transaction.
    Steven admits that his signature on the 1995 deed is real and that he was present
    when decedent signed the deed. Steven paid the attorney for preparing the deed.
    On August 4, 2010, decedent executed a last will and testament prepared
    for her by an attorney in New York City. Article Four of the will provided that
    "my entire interest (that being 50% of the overall) in the [Woodside property]
    be devised and bequeathed to my eldest son Peter Kwan . . . ." Article Five of
    A-2985-21
    3
    the will provided that if she had been predeceased by Peter, she devised and
    bequeathed her interest in the Woodside property to Peter's children. The will
    does not address any other assets.
    On May 28, 2019, decedent, then a resident of Middlesex County, died.
    She was survived by her children. After Peter submitted the will to probate,
    Steven filed a verified complaint in the Chancery Division. He alleged: (1) the
    will is invalid because it was the product of undue influence by Peter over
    decedent; and (2) decedent's estate did not include an interest in the Woodside
    property because the 1995 deed purporting to transfer the parcel to decedent and
    Steven as tenants in common was fraudulent. Steven alleged it was the intention
    of decedent, Peter, and Steven that the 1995 transfer of the Woodside property
    would be from decedent, Peter, and Steven as joint tenants with a right of
    survivorship to decedent and Steven as joint tenants with a right of survivorship.
    In support of his allegation that the will is invalid, Steven alleged that
    Peter maintained a confidential relationship with decedent, who spoke limited
    English and did not complete elementary school in her native China. According
    to the complaint, Peter convinced decedent to meet with an attorney for the
    purpose of drafting the will. Steven alleged that Peter secretly communicated
    with the attorney and directed him to include provisions in the will transferring
    A-2985-21
    4
    decedent's purported interest in the Woodside property to Peter or his children
    without decedent's knowledge or consent.
    Steven also alleged the circumstances surrounding the execution of
    decedent's will were suspicious because: (1) the will does not dispose of
    decedent's personal property or residuary estate; (2) the sole dispositive
    provision of the will purports to devise an interest in real property that was
    subject to termination on decedent's death; (3) the deed to the Woodside property
    contains whited-out and handwritten provisions; 2 (4) decedent did not read,
    write, speak, or understand English; and (5) the will was contrary to the
    intentions expressed by decedent at the time of the 1993 and 1995 transactions
    involving the Woodside property to create a joint tenancy with a right of
    survivorship with Steven.
    According to the complaint, at the time decedent, Peter, and Steven
    executed the 1995 deed, it contained a typewritten passage identifying decedent
    and Steven as receiving the property as joint tenants with a right of survivorship.
    He alleged that
    2
    The complaint and the parties' briefs use the phrase "white out" as both a verb
    and a noun. This appears to be a reference to Wite-Out, the commercial name
    for a commonly used quick dry correction fluid. The court understands the term
    to mean both the act of applying correction fluid to a document and the
    correction fluid itself, regardless of whether the product Wite-Out was used.
    A-2985-21
    5
    [s]ometime after decedent and [Steven] executed the
    [1995 deed], and without providing any notice to
    decedent or [Steven], Peter . . . caused the [d]eed to be
    altered to white out the provision identifying decedent
    and [Steven] as "joint tenants with right of
    survivorship" and replace it with a handwritten
    provision which made no[] reference to any right of
    survivorship.
    Steven alleged Peter thereafter caused the altered deed to be recorded.
    Steven sought an order declaring the will null and void, declaring that the
    Woodside property was not part of decedent's estate and belongs solely to him
    as the surviving joint tenant, appointing him personal representative of the
    estate, and awarding him attorney's fees and costs.
    On May 7, 2021, Peter's counsel sent Steven's counsel a letter pursuant to
    R. 1:4-8, notifying him that Steven's claims were frivolous and demanding
    withdrawal of the verified complaint. He stated that a failure to withdraw the
    verified complaint would expose Steven to sanctions, including Peter's
    attorney's fees and costs.
    After discovery, Peter moved for summary judgment. He denied ever
    having seen decedent's will or been made aware of its contents prior to her death.
    Peter also denied having known of or spoken to the attorney who prepared
    decedent's will.   Peter certified that pursuant to Chinese tradition, which
    decedent followed closely, a mother leaves her estate to her male heirs and that
    A-2985-21
    6
    because he was her only child with grandsons, it would have been logical to his
    mother to leave her only valuable asset to him and, if he died before her, to his
    sons. He certified that in 2010, his mother was strong willed, independent , and
    of sound mind, and could have taken a train into New York City to retain an
    attorney to execute her will without her children knowing or being concerned
    for her safety. He noted that decedent lived with Steven for approximately eight
    years before and nine years after the will was executed.
    Peter also denied altering or causing the alteration of the 1995 deed and
    certified that he had no involvement with its recording. During discovery,
    Steven could not produce a copy of the 1995 deed that he signed. He admitted
    that he has never seen the 1995 deed with white-out in or on it in any form. He
    also admitted that he never observed anyone white-out any provision of the deed.
    When asked during discovery whether he claimed that the notary public whited-
    out the phrase "joint tenancy with right to survivorship" on the deed without
    Steven's permission, he testified, "I did not say that; okay." Steven admitted
    that he does "not have any proof" that the notary public applied white-out to any
    portion of the 1995 deed without the parties' consent.
    At the time of the execution of the 1995 deed, the role of the notary public
    was "title closer" responsible to notarize the deed, notarize the mortgage, and
    A-2985-21
    7
    conform the deed and mortgage. The notary testified at his deposition that he
    witnessed decedent, Peter, and Steven sign the deed, and that handwritten
    notations on the deed were placed there by him at the direction of the lenders
    with the approval of the parties to the transaction. The notary confirmed that he
    maintained control of the fully-executed deed, not allowing any changes to the
    document, until he delivered it to the title company to be recorded.
    Discovery also revealed that subsequent to the recording of the 1995 deed,
    Steven used the Woodside property as collateral for another loan. He did not,
    however, raise any concerns at that time about the terms of the 1995 deed or
    suggest that he and decedent owned the property as joint tenants with a right of
    survivorship.
    In opposition to Peter's motion Steven relied on the allegations in the
    complaint with respect to the alleged confidential relationship and pointed out
    that decedent's will was discovered in Peter's safe deposit box, even though he
    denied having been aware of the will. In addition, Steven argued that he would
    present the testimony of an expert forensic document examiner who would opine
    that the 1995 deed was altered with white-out. That expert, however, admitted
    that she never viewed the original deed and formed her opinion based on a
    photocopy of the deed.
    A-2985-21
    8
    On October 7, 2021, the trial court issued an oral opinion granting Peter's
    motion. On October 12, 2021, the court issued a written statement of reasons
    expanding on its reasoning. The court found there was no dispute of material
    fact with respect to the absence of a confidential relationship between decedent
    and Peter. The court found that Steven produced no evidence suggesting that in
    2010 decedent was not of sound mind, could not make a decision with respect
    to the disposition of her property, or was dependent on Peter, and concluded that
    the familial relationship between Peter and decedent was insufficient to create a
    confidential relationship. The court noted that decedent lived with Steven for
    eight years prior and nine years after executing the will.
    The court also found that Steven's allegations with respect to Peter's
    participation in the drafting of the will or the formulation of its contents was
    "mere speculation." Of note, the court found, was that the court authorized
    Steven to depose Michael Lam, the attorney who drafted decedent's will, but
    Steven never carried out the deposition. The court also found significant the
    fact that Steven was permitted to review Peter's bank records but uncovered no
    evidence of undue financial influence over decedent, despite his claim Peter
    dissipated the proceeds of a settlement decedent received after an accident,
    which he claimed proved Peter's financial control over decedent.
    A-2985-21
    9
    The court also found no genuine issue of material fact with respect to the
    validity of the 1995 deed granting Steven an interest as a tenant in common in
    the Woodside property. The court began its analysis by finding that the deed,
    which was notarized by a licensed notary public, is presumed valid. After a
    review of the moving papers, the court concluded that Steven failed to produce
    clear and convincing evidence that a fact finder could conclude overcomes the
    presumption. The court noted that Steven did not witness anyone alter the
    document and never saw a copy of the deed that had white-out on it. The court
    rejected the expert opinion proffered by Steven, which it described as a "scant
    single paragraph" and a net opinion that was insufficient to create a disputed
    issue of material fact regarding the alleged alteration of the will.
    In addition, the court concluded that Steven produced insufficient proof
    to establish that decedent and he intended the 1995 deed to covey the property
    to themselves as joint tenants with the right of survivorship. The court noted
    that decedent's 2010 will conveyed her interest in the Woodside property, which
    establishes that she believed she owned the property with Steven as tenants in
    common. An October 12, 2021 order memorializes the court's decision.
    Peter thereafter moved for attorney's fees and costs pursuant to R. 1:4-8
    and N.J.S.A. 2A:15-59. Steven opposed the motion.
    A-2985-21
    10
    On February 25, 2022, the court issued a written opinion denying Peter's
    motion. The court found
    it was reasonable for [Steven] to question the 1995
    [d]eed based on the handwritten notes on the deed,
    [Steven's] family history, and the history of the two
    properties. However, based on discovery, including the
    deposition of [the notary], the [c]ourt was satisfied that
    there was no issue of material fact as it related to the
    validity of the 1995 [d]eed.
    It was also reasonable for [Steven] to bring a claim for
    undue influence based on the circumstances. Based on
    the pleadings, there was enough information to suspect
    the potential for undue influence and to send this case
    to discovery. Post-discovery, the [c]ourt dismissed the
    claim summarily in favor of [Peter]. While the [c]ourt
    did not agree with [Steven] that [d]ecedent and [Peter]
    were in a confidential relationship and that there were
    suspicious circumstances surrounding the [w]ill, the
    [c]ourt certainly appreciated the argument. The [c]ourt
    was only able to make such determination after
    carefully reviewing [Steven's] allegations, the
    depositions of both [Steven] and [Peter], and the
    certifications of other family members.
    A February 25, 2022 order denies Peter's motion, and directs that the
    estate shall bear the attorney's fees and costs incurred by both Peter and Steven.
    Peter thereafter moved for partial reconsideration. He argued that the trial
    court erred when it ordered that the estate bear the attorney's fees and costs
    incurred by Steven, as Steven did not request such relief. In addition, he argued
    that because the estate is of limited value, charging the estate for Steven's
    A-2985-21
    11
    attorney's fees and costs would effectively deplete Peter's inheritance. Steven
    cross-moved for an order charging the estate for his attorney's fees and costs.
    On April 25, 2022, the trial court issued an order granting Peter's motion
    for partial reconsideration and denying Steven's cross-motion.         The order
    vacates the February 25, 2022 order to the extent it directs the estate be charged
    for either party's attorney's fees and costs. In a written statement of reasons
    incorporated into the order, the court stated that when it "ordered [Steven's]
    attorneys' fees to be paid out of the Estate, [it] did not consider the [Woodside
    property] was essentially the Estate's sole asset, and thus, that such order would
    result in [Peter] having to pay for both his and [Steven's] attorneys' fees. This
    was not the outcome that the [c]ourt had intended . . . ." The court denied
    Steven's cross-motion for the same reasons.
    This appeal followed. Steven argues the trial court erred by not viewing
    the evidence proffered in support of Peter's summary judgment motion in a light
    most favorable to Steven.     He argues that had the court viewed favorably
    Steven's testimony regarding the intent of the parties to the 1995 transaction and
    his memory of signing the deed containing language transferring the property to
    decedent and Steven as joint tenants with a right of survivorship, it should have
    denied summary judgment. He makes a similar argument with respect to the
    A-2985-21
    12
    court failing to view favorably his testimony regarding decedent's confidential
    relationship with Peter. Steven argues that had the court credited his testimony,
    it should have denied summary judgment. Finally, Steven argues that the trial
    court abused its discretion when it denied his application to charge the estate for
    the attorney's fees and costs he incurred.
    II.
    We begin with the trial court's rejection of Steven's claim that the will was
    the product of undue influence by Peter.       We review a grant of summary
    judgment de novo, applying the same standard as the trial court. Samolyk v.
    Berthe, 
    251 N.J. 73
    , 78 (2022). That standard requires us to "determine whether
    'the pleadings, depositions, answers to interrogatories and admissions on file,
    together with the affidavits, if any, show that there is no genuine issue as to any
    material fact challenged and that the moving party is entitled to a judgment or
    order as a matter of law.'" Branch v. Cream-O-Land Dairy, 
    244 N.J. 567
    , 582
    (2021) (quoting R. 4:46-2(c)). "Summary judgment should be granted . . .
    'against a party who fails to make a showing sufficient to establish the existence
    of an element essential to that party's case, and on which that party will bear the
    burden of proof at trial.'" Friedman v. Martinez, 
    242 N.J. 449
    , 472 (2020)
    (quoting Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986)). We do not defer
    A-2985-21
    13
    to the trial court's legal analysis or statutory interpretation.   RSI Bank v.
    Providence Mut. Fire Ins. Co., 
    234 N.J. 459
    , 472 (2018); Perez v. Zagami, LLC,
    
    218 N.J. 202
    , 209 (2014).
    Our Supreme Court has cautioned that summary judgment ordinarily
    should not be granted where an action depends on a determination of a person's
    state of mind, including claims of fraud or duress. Lombardi v. Masso, 
    207 N.J. 517
    , 544 (2011) (quotations omitted); see also Ruvolo v. Am. Casualty Co., 
    39 N.J. 490
    , 500 (1963) (stating that a court should hesitate to grant summary
    judgment when it must "resolve questions of intent and mental capacity"); Marte
    v. Oliveras, 
    378 N.J. Super. 261
    , 276 (App. Div. 2005) (stating that factual
    issues related to alleged undue influence are not susceptible to resolution on
    motion for judgment).
    On the other hand, if the court determines there is no genuine issue of
    material fact, the court is not precluded from granting summary judgment,
    notwithstanding issues involving state of mind. Fiedler v. Stonack, 
    141 N.J. 101
    , 129 (1955); Bower v. The Estaugh, 
    146 N.J. Super. 116
    , 121 (App. Div.
    1977) (affirming grant of summary judgment where court discerns "no evidence
    of undue influence"). Also, "when the evidence is so one-sided that one party
    must prevail as a matter of law, the trial court should not hesitate to grant
    A-2985-21
    14
    summary judgment." Brill v. Guardian Life Ins. Co., 
    142 N.J. 520
    , 540 (1995)
    (quotations omitted).
    In evaluating a motion for summary judgment to determine the presence
    of a genuine issue of material fact, the court must consider both the allocation
    of the burden of persuasion, and the standard of proof. "An issue of fact is
    genuine only if, considering the burden of persuasion at trial, the evidence
    submitted by the parties on the motion, together with all legitimate inferences
    therefrom favoring the non-moving party, would require submission of the issue
    to the trier of fact." R. 4:46-2(c). We must be "guided by the same evidentiary
    standard of proof – by a preponderance of the evidence or clear and convincing
    evidence – that would apply at the trial on the merits . . . ." Brill, 
    142 N.J. at 533
    .
    When the validity of a will is challenged, it is generally presumed that
    "the testator was of sound mind and competent when he executed the will."
    Gellert v. Livingston, 
    5 N.J. 65
    , 71 (1950). However, "[i]f a will is tainted by
    'undue influence,' it may be overturned." Haynes v. First Nat'l Bank of N.J., 
    87 N.J. 163
    , 176 (1981). "Undue influence has been defined as mental, moral or
    physical exertion which has destroyed the free agency of a testator by preventing
    A-2985-21
    15
    the testator from following the dictates of his own mind and will and accepting
    instead the domination and influence of another." 
    Ibid.
     (quotation omitted).
    Ordinarily, the opponent of a will bears the burden to prove undue
    influence. In re Rittenhouse's Will, 
    19 N.J. 375
    , 378 (1955). However, certain
    circumstances may create a presumption of undue influence, shifting the burden
    of proof to the will's proponent. Id. at 379. This occurs when two conditions
    are met: first, "the will benefits one who stood in a confidential relationship with
    the testatrix"; and second, "there are additional circumstances of a suspicious
    character present which require explanation." Id. at 378-79. The opponent of
    the will must prove a confidential relationship by a preponderance of the
    evidence. Est. of Ostlund v. Ostlund, 
    391 N.J. Super. 390
    , 402 (App. Div. 2007).
    The first element of a confidential relationship is difficult to define.
    Pascale v. Pascale, 
    113 N.J. 20
    , 34 (1988). It includes a relationship "in which
    confidence is naturally inspired, or, in fact, reasonably exists." 
    Ibid.
     (quoting
    In re Est. of Fulper, 
    99 N.J. Eq. 293
    , 314 (Prerog. Ct. 1926)). It requires an
    element of inequality between the parties to the relationship. 
    Ibid.
     One party
    must deal with the other from a position of "superior knowledge of the matter
    derived from a fiduciary relation, or from over-mastering influence," or the other
    party must deal from a position of "weakness, dependence or trust justifiably
    A-2985-21
    16
    reposed," such that "unfair advantage is rendered possible." 
    Ibid.
     (quotations
    omitted).
    Our courts have recognized, "[a]mong the most natural of confidential
    relationships is that of parent and child." 
    Ibid.
     However, "the mere existence
    of family ties does not create . . . a confidential relationship." Vezzetti v.
    Shields, 
    22 N.J. Super. 397
    , 405 (App. Div. 1952). The court must still examine
    the relationship to ascertain whether there is dominance of one party over the
    other, or inequality of dealing. The court must consider such factors as:
    whether trust and confidence between the parties
    actually exist, whether they are dealing on terms of
    equality, whether one side has superior knowledge of
    the details and effect of a proposed transaction based
    on a fiduciary relationship, whether one side has
    exerted over-mastering influence over the other or
    whether one side is weak or dependent.
    [Est. of Ostlund, 
    391 N.J. Super. at 402
    .]
    In Haynes, the Court found there was a confidential relationship between a
    mother and child, where the mother was "afflicted by debilitations of advanced
    years, was dependent upon her sole surviving child with whom she lived and
    upon whom she relied for companionship, care and support." 87 N.J. at 176.
    The second element necessary to create a presumption of "undue influence
    is the presence of suspicious circumstances . . . ." Ibid. "Such circumstances
    A-2985-21
    17
    need to be no more than 'slight.'" Ibid.; accord In re Est. of Stockdale, 
    196 N.J. 275
    , 304 (2008).
    We have carefully reviewed the record in light of these precedents and
    agree with the trial court's conclusion that the evidence presented in support of
    Peter's motion for summary judgment, even when viewed in a light most
    favorable to Steven, does not raise a genuine issue of material fact with respect
    to the validity of the will.    The record contains no evidence that Peter's
    relationship with decedent was anything more than that of a mother and son.
    Decedent, who lived with Steven for eight years before and nine years after she
    executed the will, although of limited education, was by all accounts in the
    record an independent, determined, and competent woman in 2010. A widowed
    mother of four young children, decedent immigrated to this country from China
    despite not speaking or reading English and worked tirelessly at a low-wage
    position to support her family. Despite these challenges, over the years decedent
    raised her family and accumulated sufficient wealth to purchase two homes, one
    of which was a multi-family property that generated rental income. Nothing in
    the record suggests she suffered from a diminished capacity, was subject to
    overbearing manipulation by Peter, or was anything other than in control of her
    personal affairs in 2010 when she executed her will.
    A-2985-21
    18
    In addition, the record demonstrates that decedent was dedicated to her
    eldest son. Working in a factory as a seamstress seven days a week, decedent
    provided financial support for Peter's education in medical school. She later
    transferred one of the homes she owned to Peter and his wife for no apparent
    monetary consideration. Steven admits that decedent's preference for Peter was
    consistent with the Chinese cultural norms to which she held a lifelong
    dedication.    As the trial court found, Steven could point to no evidence
    suggesting that it would have been unusual for decedent to bequeath her only
    significant asset to Peter, giving him a fifty-percent interest in a property, the
    other fifty percent of which is owned by Steven. Decedent's will effectively
    provides that both of her sons will inherit the Woodside property, while her elder
    son retained ownership of the South Plainfield residence she transferred to him
    and his wife years earlier, a preference consistent with his status as eldest son.
    We see no basis on which to conclude that the trial court erred in granting
    summary judgment with respect to the validity of the will.
    We turn to the trial court's grant of summary judgment with respect to the
    validity of the 1995 deed. By statute, a joint tenancy is created by express
    language in the document transferring ownership.
    [N]o estate shall be considered and adjudged to be an
    estate in joint tenancy, except it be expressly set forth
    A-2985-21
    19
    in the grant or devise creating such estate that it was or
    is the intention of the parties to create an estate in joint
    tenancy and not an estate of tenancy in common, any
    law, usage, or decision theretofore made, to the
    contrary notwithstanding.
    [N.J.S.A. 46:3-17.]
    "There is no right of survivorship in a tenancy in common as there is in a
    joint tenancy . . . ." Weiss v. Cedar Park Cemetery, 
    240 N.J. Super. 86
    , 97 (App.
    Div. 1990). Tenants in common have "the right of each to occupy the whole in
    common with the [other]." Gonzalez v. Wilshire Credit Corp., 
    207 N.J. 557
    ,
    564, n.2 (2011) (quoting Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 
    389 N.J. Super. 219
    , 225 (Ch. Div. 2006) (alteration in original)); accord Burbach v.
    Sussex Cnty. Mun. Utils. Auth., 
    318 N.J. Super. 228
    , 233–34 (App. Div. 1999).
    Therefore, the death of one tenant does not give the other tenant the right to the
    whole. Weiss, 
    240 N.J. Super. at 96
    .
    We applied these principles in Weiss. There, two brothers purchased a
    cemetery plot containing eight grave sites. 
    Id. at 90-91
    . One brother died many
    years before the other. 
    Id. at 91, 93
    . After the death of the second brother, a
    dispute arose among family members with respect to who owned the plot. The
    decedents of the first brother to die contended that his interest in the plot passed
    A-2985-21
    20
    to them because the plot had been owned by the brothers as tenants in common.
    
    Id. at 93
    . We agreed. As we explained, when the brothers
    bought the cemetery plot, they took title as tenants in
    common rather than as joint tenants with the right of
    survivorship. This is so because there is nothing in the
    deed to indicate that they intended to create a joint
    tenancy.     In the absence of language expressly
    indicating the creation of a joint tenancy or evidence
    that such was the intent of the parties, as a matter of
    law, possession of the two brothers in the property was
    as tenants in common.
    [Id. at 97.]
    Steven does not dispute these legal principles. He argues, however, that
    he has raised a genuine issue of material fact with respect to whether the 1995
    deed contained language transferring the property to decedent and him as joint
    tenants with a right of survivorship, which was nefariously removed by Peter or
    another unnamed person. We have carefully reviewed the record and agree with
    the trial court that Steven's position is supported by nothing more than
    speculation. While the deed contains handwritten notations, the notary who
    witnessed the parties sign the deed testified that the handwritten notations were
    made to conform the deed to the mortgage with the parties' consent. Although
    Steven testified that he recalled the deed containing language trans ferring the
    property to him and his mother as joint tenants with a right of survivorship, he
    A-2985-21
    21
    did not produce a copy of a deed containing that language and produced no proof
    that the deed was altered after he signed it. Moreover, decedent's will expressly
    bequeaths her interest in the Woodside property to Peter, establishing that she
    believed she owned the property with Steven as a tenant in common.
    Finally, we address the trial court's denial of Steven's motion to charge
    the estate for his attorney's fees and costs. The decision to award attorney's fees
    rests "within the sound discretion of the trial court." Maudsley v. State, 
    357 N.J. Super. 560
    , 590 (App. Div. 2003). "[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)). An abuse of discretion
    occurs "when a decision is 'made without a rational explanation, inexplicably
    departed from established policies, or rested on an impermissible basis.'" Flagg
    v. Essex Cnty. Prosecutor, 
    171 N.J. 561
    , 571 (2002) (quoting Achacoso-Sanchez
    v. Immigration and Naturalization Serv., 
    779 F.2d 1260
    , 1265 (7th Cir. 1985)).
    While New Jersey generally disfavors the shifting of attorney's fees, a
    prevailing party may recover attorney's fees if expressly provided by statute,
    court rule, or contract. Collier, 
    167 N.J. at
    440 (citing North Bergen Rex
    A-2985-21
    22
    Transp., Inc. v. Trailer Leasing Co., 
    158 N.J. 561
    , 569 (1999) and Dep't of Envtl.
    Prot. v. Ventron Corp., 
    94 N.J. 473
    , 504 (1983)).
    Rule 4:42-9(a)(3) permits the award of fees in probate actions. "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 proponent and the contestant, to be paid out of the estate." 
    Ibid.
     (emphasis
    added). In accordance with this rule, courts may allow counsel fees to both the
    proponent and contestant in a will dispute "[e]xcept in a weak or meretricious
    case . . . ." In re Prob. of Will & Codicil of Macool, 
    416 N.J. Super. 298
    , 313
    (App. Div. 2010) (alteration in original) (quoting In re Reisdorf, 
    80 N.J. 319
    ,
    326 (1979)).
    We see no abuse of discretion in the trial court's denial of Steven's fee
    application in light of his failure to secure any relief and the relatively small
    value of the estate. As the trial court noted, charging the estate for the attorney's
    fees and costs of both parties would effectively deprive Peter of his inheritance.
    While Steven's claims may not have been frivolous, that alone does not mandate
    that he be awarded attorney's fees and costs against the estate.
    A-2985-21
    23
    To the extent we have not specifically addressed any of Steven's
    remaining claims, we conclude they lack sufficient merit to warrant discussion
    in a written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-2985-21
    24
    

Document Info

Docket Number: A-2985-21

Filed Date: 2/12/2024

Precedential Status: Non-Precedential

Modified Date: 2/12/2024