IN THE MATTER OF A PETITION FOR EXPUNGEMENT OF MARTIN v. CARLUCCIO(BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1510-15T3
IN THE MATTER OF THE
ESTATE OF HAROLD
BECKER, deceased.
———————————————————————————
Argued December 15, 2016 – Decided February 27, 2017
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Atlantic
County, Docket No. 116042.
Richard F. Klineburger, III, argued the cause
for appellant Estate of Scott Becker
(Klineburger & Nussey, attorneys; Mr.
Klineburger and Carolyn G. Labin, on the
briefs).
John J. Palitto, Jr., argued the cause for
respondent Lynda Becker Kelly (Price & Price,
LLC, attorneys; Mr. Palitto, on the brief).
Brandon Becker, respondent pro se, join in the
brief of respondent Lynda Becker Kelly.
Respondent Stuart Becker has not filed a
brief.
PER CURIAM
Defendant Estate of Scott Becker1 appeals from an October 28,
2015 Probate Part order denying defendant's motion for a new trial.
Prior to this motion, on July 29, 2015, the Probate Part entered
an order in favor of plaintiff Lynda Becker Kelly, the ex-wife of
Harold Becker (the testator), admitting to probate a copy of his
March 6, 2012 will. For the reasons that follow, we affirm the
denial of defendant's motion for a new trial.
I.
We discern the following facts and procedural history from
the record on appeal. Plaintiff and the testator married in 1983
and divorced in 2000. They reconciled in 2005, living together
unmarried until the testator's death in 2013.
On March 6, 2012, the testator executed a will prepared by
his longtime attorney, Mark Roddy. The testator named plaintiff
as his executor and further provided, "I hereby bequeath my one-
half interest in my former home2 to my youngest son, [Brandon,]"
along with "[a]ny mon[ies], property, or items not here and above
1
On October 24, 2016, we entered an order changing appellant
from Scott Becker to the Estate of Scott Becker. For ease of
reference, we refer to both Scott Becker and his estate as
"defendant," and we refer to the testator's other two sons, Stuart
Becker and Brandon Becker, by their first names.
2
The home was a townhouse in Philadelphia. The testator's first
wife, Frances, owned the other one-half interest.
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described[.]" The testator signed the will in the presence of
Roddy, two attesting witnesses, and a notary public.
On August 21, 2013, the testator sustained serious injuries
in a car accident; one month later, he succumbed to his injuries,
passing away at the age of seventy. His surviving heirs at law
were his three sons: Stuart, Scott, and Brandon. Stuart and Scott
are his sons by his first wife, while Brandon is his son by
plaintiff.
Brandon has a history of incarcerations stemming from his
long-term use of illegal drugs. At the time of his father's death,
Brandon had been incarcerated since April 2012.
On May 29, 2014, plaintiff filed a verified complaint seeking
to probate a copy of the March 2012 will. Plaintiff certified the
testator was the only individual with knowledge of the location
of the original will, and she was unable to produce the original
document.
Stuart and Scott Becker filed a joint answer to the complaint
on July 18, 2014. Along with the answer, Stuart filed a
verification denying "the existence of any will," and stating, "It
is my understanding that my father had destroyed any will prior
to his death because he wanted all of his children to share equally
in any Estate that he would leave." Stuart further asserted his
father was not of sound mind and body when he may have considered
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composing a will, claiming "undue influence by [plaintiff],
especially at times during the on-going intoxication of my deceased
father." According to Stuart, his father was "addicted to
narcotics for the vast majority of his adult life." Stuart also
asserted he and Scott were not estranged from their father, and
argued, "It makes no sense to exclude his two sons and to award
our family home to another person." Defendant later abandoned the
undue influence claim.
Judge Raymond Batten conducted a trial on July 21 and 29,
2015, hearing testimony from Roddy, plaintiff, Brandon, and Scott.
Roddy testified to a long history with the testator, serving as
his personal attorney since the 1980s. According to Roddy, on
August 3, 2011, the testator came to his office to discuss his
will. Roddy drafted the will, which the testator later signed at
Roddy's office on March 6, 2012. On March 9, 2012, Roddy sent the
testator the original will and a copy and retained a photocopy for
his own records. Roddy stated he believed the testator had the
capacity to execute the will, and said he would not have initiated
the process if the testator lacked this capacity.
Roddy further testified to the contents of the will, stating
Brandon was the sole beneficiary of the estate. Roddy said he had
"detailed discussions" with the testator, and "it was his position
that Brandon would never be able to hold and keep a real job once
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he got out of jail, and all of his other relatives were well
capable of taking care of themselves. For that reason . . . he
made him the beneficiary."
Plaintiff testified the testator showed her the will upon
receiving it from Roddy by mail. He told her he was leaving
everything to Brandon because she could care for herself.
Plaintiff further testified she saw the testator mail the original
will to Brandon's prison address, noting, "I knew where it was."
Plaintiff said the testator mailed the will to Brandon on the same
day he received it from Roddy, placing the mailing date in March
2012.
Brandon testified, however, that he was not yet in prison in
March 2012. Instead, he stated he received the original will, a
letter, and a copy of the will from his father in October 2012
while he was in prison. He then modified his statement and said
he only received the original will and made a copy of it himself.
Brandon stated his father visited him at prison "every weekend"
in 2012, and he also visited him in jail after sending him the
will.
According to Brandon, nine days after his father's car
accident, he received an institutional charge and was placed in
administrative detention. He was then transferred to a different
prison facility on September 19, the day before his father died.
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Brandon said the authorities at the new facility "tear things up,"
prompting him to mail the original will to his childhood friend
A.J.,3 approximately two weeks after arriving at the new facility.
Brandon said A.J. sent him two letters after he mailed her
the will – one letter stated she received the package, and another
promised to keep the will safe and inform Brandon of her new
address. However, Brandon testified he wrote "multiple"
additional letters to A.J. requesting she mail the will back to
him or his mother. Brandon said he sent letters to both A.J. and
her sister, but he did not receive responses. He also had a friend
travel to A.J.'s house, which appeared vacant. At the second
trial date, Brandon stated after he lost contact with A.J.,
approximately one year prior to trial, he received a letter from
A.J.'s sister, who was also incarcerated, promising to keep the
will safe. He said he lost contact with her after she was released
from prison.
Scott testified that in 2012, his father told him he was
planning his will and he wanted to leave his share of Scott's
mother's home to Brandon. Scott objected strongly to this plan.
His father later told Scott he completed the will. However, Scott
testified he had a subsequent conversation with his father, who
told him the will was "gone," and he "wiped [his] ass with it."
3
We use initials to protect the privacy of this witness.
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At the conclusion of testimony on July 29, 2015, Judge Batten
rendered an oral decision. In delivering his opinion, the judge
reviewed the testimony of the witnesses. The judge found, although
the testimony of Brandon and plaintiff differed as to when the
testator mailed the will, the testator relinquished his possession
in either scenario.
Judge Batten further observed that neither Scott nor Stuart
"did anything suggestive of respective assertions of entitlement
to administration" between the testator's death and filing their
answer to plaintiff's complaint. This "silence both in deed and
word" the judge found "probative."
Regarding the will itself, Judge Batten found "the content
of this will is consistent . . . with the testamentary intent
provided by [the testator] clearly to Mr. Roddy." Specifically,
Judge Batten found the testator intended to leave his full estate
to Brandon because he was incapable of caring for himself.
Last, Judge Batten found the "presumption of revocation" did
not apply to the facts at trial because the testator surrendered
his possession and access to the will upon mailing it to Brandon.
From the record, the judge found no basis to conclude the testator
destroyed the will or performed a revocatory act.
The judge then ruled:
[O]n [these] findings of fact, substantially
uncontroverted . . . I am satisfied that [the
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will] constitutes a true and accurate copy of
the last will and testament of [the testator],
that it was lost, that it has not been revoked,
and that it is therefore properly submitted
for probate . . . .
Judge Batten then entered the order admitting a copy of the will
to probate; the order also appointed plaintiff to administer the
estate.
On August 17, 2015, defendant filed a motion for a new trial
accompanied by a brief and a supporting certification by
defendant's attorney. In the certification, the attorney stated
after the judge announced his decision, he hired an investigator
"to ascertain the accuracy of testimony given at trial." The
attorney alleged the investigator discovered "material"
information that "directly conflict[ed]" with certain trial
testimony. He claimed he could not have procured this new evidence
during discovery because the investigation concerned "facts to
which parties testified at trial."
On October 16, 2015, Judge Mark Sandson, replacing the
recently retired Judge Batten, heard and denied defendant's
motion. Judge Sandson found defendant failed to "indicate why
this information was newly discovered," noting defendant chose to
forgo deposing either plaintiff or Brandon during discovery. The
judge then concluded:
[P]laintiffs proved to the satisfaction of
Judge Batten that Brandon Becker had the
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original will, forwarded it to an acquaintance
who cannot be located, and as such the
original will was lost. The result of the
trial was not a miscarriage of justice as
needed under the rule, but rather the [c]ourt,
insuring the wishes and intent of the testator
to be followed[.] I cannot grant the motion
of the defendants for a new trial.
Judge Sandson formalized his decision in an order dated October
28, 2015. This appeal followed.
II.
On appeal, defendant argues a new trial is warranted because
(1) the trial court should have applied the presumption of
revocation, and (2) plaintiff failed to provide clear and
convincing evidence to overcome this presumption. Defendant also
argues Judge Sandson should have granted a new trial or, "at a
minimum," taken limited testimony on evidence allegedly refuting
Brandon's claims about the location of the original will. We
disagree.
"On a motion for a new trial in an action tried without a
jury, the trial judge may open the judgment if one has been
entered, take additional testimony, amend findings of fact and
conclusions of law or make new findings and conclusions, and direct
the entry of a new judgment." R. 4:49-1(a). The trial court
should not grant a new trial unless "it clearly appears that there
was a miscarriage of justice under the law." Dolson v. Anastasia,
55 N.J. 2, 7 (1969). A "miscarriage of justice"
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has been described as a "'pervading sense of
"wrongness" . . . [which] can arise . . . from
manifest lack of inherently credible evidence
to support the finding, obvious overlooking
or undervaluation of crucial evidence, [or] a
clearly unjust result. . . .'"
[Risko v. Thompson Muller Auto. Grp., Inc.,
206 N.J. 506, 521 (2011) (alterations in
original) (quoting Lindenmuth v. Holden, 296
N.J. Super. 42, 48 (App. Div. 1996), certif.
denied, 149 N.J. 34 (1997)).]
On appellate review, we apply essentially the same
"miscarriage of justice" standard as the trial court. Hill v.
N.J. Dep't of Corr. Comm'r Fauver, 342 N.J. Super. 273, 302 (App.
Div. 2001), certif. denied, 171 N.J. 338 (2002); R. 2:10-1. We
must provide "'due deference' to the trial court's 'feel of the
case,' with regard to the assessment of intangibles, such as
witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008)
(quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).
However, "a trial court's determination is 'not entitled to any
special deference where it rests upon a determination as to worth,
plausibility, consistency or other tangible considerations
apparent from the face of the record with respect to which he is
no more peculiarly situated to decide than the appellate court.'"
Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Dolson,
supra, 55 N.J. at 7).
In the event a decedent's original will cannot be located,
the party asserting the existence of the missing will must
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demonstrate their claim with "clearness and certainty." In re
Willitt's Estate, 46 A. 519, 527 (Prerog. Ct. 1900). The proponent
of the lost will must establish the intent of the document "by
clear and convincing evidence." Pivnick v. Beck, 326 N.J. Super.
474, 483-84 (App. Div. 1999), aff'd o.b., 165 N.J. 670 (2000).
"This clear and convincing evidence must be shown with reference
to the execution of the alleged lost will, the contents of said
will, and the circumstances under which the will was lost, stolen,
or destroyed." In re Will of Roman, 80 N.J. Super. 481, 483 (Cty.
Ct. 1963).
Under certain circumstances, when a missing will cannot be
located upon the testator's death, a rebuttable presumption arises
that the testator destroyed the will with the intent to revoke it.
Our former Court of Errors and Appeals described the presumption
as follows:
The law of this state applicable to the
establishment of lost wills is well defined.
If such a will was last seen in the custody
of the testatrix or she had access to it the
fact that it cannot be found after her death
raises the presumption that she destroyed it
animo revocandi. This presumption may be
rebutted but in order so to do the evidence
must be clear, satisfactory and convincing and
the burden is on the proponents. The proof
necessary to rebut the presumption of
revocation must be sufficient to exclude every
possibility of a destruction of the will by
the testatrix herself.
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[In re Will of Davis, 127 N.J. Eq. 55, 57 (E.
& A. 1940) (quoting In re Will of Bryan, 125
N.J. Eq. 471 [(E. & A. 1939)]).]
See also In re Estate of Jensen, 141 N.J. Eq. 222, 225 (Prerog.
Ct. 1947) (stating proof offered to rebut the presumption "must
be sufficient to exclude every possibility of a destruction of the
will by the [testator]"), aff'd, 142 N.J. Eq. 242 (E. & A. 1948);
In re Will of Calef, 109 N.J. Eq. 181, 184 (Prerog. Ct. 1931),
aff'd o.b., 111 N.J. Eq. 355 (E. & A. 1932), cert. denied sub
nom., Neely v. Stacy, 288 U.S. 606, 53 S. Ct. 397, 77 L. Ed. 981(1933); In re Estate of Ehrlich, 427 N.J. Super. 64, 75-76 (App.
Div. 2012) (noting proof must be "clear satisfactory, and
convincing to rebut the presumption of the original's revocation
or destruction" (citations omitted)), certif. denied, 213 N.J. 46(2013).
If a will is shown to be out of the testator's possession,
the party asserting revocation "must show that it came again into
his custody, or was actually destroyed by his direction." Will
of Calef, supra, 109 N.J. Eq. at 185 (citations omitted). However,
this standard is "qualified by the rule of access, or opportunity
of repossession, and possibility, not probability, of such access
is controlling." Ibid. (citations omitted). This rule "does not
require an actual tracing of the will back into the possession of
the testatrix, but is satisfied by a showing of access, that is,
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opportunity of repossession, and upon such showing the presumption
of revocation remains until rebutted by evidence which is clear,
convincing and satisfactory." Id. at 186 (emphasis in original).
In this case, Judge Batten found the presumption of revocation
did not apply because the testator surrendered his possession and
access to the will. The judge stated:
At whichever date [the testator mailed the
will to Brandon] . . . [the testator] did not
enjoy possession and did not enjoy access to
the original will himself. That the will may
have been in . . . the prison cell of Brandon
Becker on the occasion of some visit by [the
testator] proves nothing more than that. It
is not affirmative proof that [the testator]
somehow had access to a will [or] that he
. . . even knew [it] was in Brandon Becker's
cell. . . .
Defendant argues, because the testator had the possibility
of access to the will through his visits with Brandon in prison,
the presumption of revocation applies. Defendant relies on Will
of Calef, where the court applied the presumption because the
testatrix knew where the will was, and although she did not have
custody of it, she "could, if she so desired, have obtained
possession of it and destroyed it." Will of Calef, supra, 109
N.J. Eq. at 199. Defendant further argues the presumption of
revocation "remained in place" because Brandon was the chief
beneficiary of the will, allegedly possessed it when the testator
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died, and had a strong interest in admitting it to probate. See
id. at 186.
Given our deferential standard of review, we reject these
arguments. Judge Batten heard the trial testimony and concluded
there was insufficient evidence showing the testator had access
to the will or even knew of its location in Brandon's cell. Judge
Sandson then reviewed this decision and found no miscarriage of
justice warranting a new trial. We concur. Further, our review
of the record convinces us that it fully supports Judge Batten's
conclusions. Although the testator allegedly visited Brandon in
prison, there was no indication he could have obtained the will
if he so desired. While Brandon's status as the chief beneficiary
means "less evidence of access is necessary to sustain" the
presumption of revocation, Will of Calef, supra, 109 N.J. Eq. at
186, here, there was still insufficient evidence of access. There
was no evidence the will document was present during any visit
between Brandon and the testator. We find no basis to disturb
Judge Batten's finding that the presumption of revocation does not
apply. As such, defendant's additional claim that Judge Batten
improperly placed the burden of proof on Scott and Stuart lacks
merit.
Defendant also argues Scott's testimony – that the testator
said the will was "gone" – proved the testator destroyed the will
14 A-1510-15T3
with the intent to revoke it. However, Judge Batten directly
addressed this testimony in his oral decision, finding the
testator's alleged statement was "as likely a comment of
appeasement as opposed to an accurate memorialization of
affirmative and knowing destruction of the original will." We
defer to Judge Batten's assessment of the witnesses at trial.
Jastram, supra, 197 N.J. at 230.
Next, defendant argues plaintiff "failed to present clear and
convincing proof to overcome the presumption of revocation in this
matter." Defendant contends plaintiff offered conflicting
explanations regarding the location of the will; indeed, plaintiff
first certified in her complaint that only the testator knew the
location of the will, but she later testified she witnessed the
testator mail it to Brandon. Defendant further highlights other
facts and instances of conflicting testimony to challenge
plaintiff and Brandon's credibility. Defendant contends that in
light of these credibility issues, Judge's Batten's decision to
probate the will constitutes a miscarriage of justice.
This argument also lacks merit. As noted, the main thrust
of defendant's argument fails because the presumption of
revocation does not apply. Moreover, assuming arguendo that all
of defendant's credibility challenges are correct, we still find
the result does not constitute a miscarriage of justice. Most
15 A-1510-15T3
persuasive is Roddy's testimony regarding the testator's clear
intention to leave his entire estate to Brandon. We agree with
Judge Sandson's assessment that Judge Batten "insur[ed] the wishes
and intent of the testator." Therefore, we find no basis to order
a new trial.
Last, defendant argues Judge Sandson erred by denying his
motion for a new trial due to newly discovered evidence. Defendant
contends that prior to trial he relied on plaintiff's complaint,
which stated only the testator knew the location of the original
will. Based on this information, defendant claims he had "no
reason to think" plaintiff and Brandon would testify that Brandon
received the will in prison and then sent it A.J or her sister.
Therefore, defendant argues the trial court should have granted a
new trial or taken limited testimony based on the private
investigator's new information regarding A.J., which would have
changed the result in this matter.
We reject this argument. The new evidence offered by
defendant consists of A.J and her sister's criminal histories and
an interview between A.J. and the investigator, during which A.J.
allegedly denied receiving the will from Brandon. Defendant claims
this "determinative" information proves Brandon perjured himself
during trial and contradicts Judge Batten's finding that the
testator did not destroy his will. The new evidence offered by
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defendant comes too late to merit consideration in this case. The
alleged information represents additional facts and circumstances
that were ascertainable before trial through discovery. Having
made the strategic decision to forego discovery, defendant has no
basis for requesting "a second bite of the apple" by virtue of a
new trial. State v. Bianco, 391 N.J. Super. 509, 517 (App. Div.),
certif. denied, 192 N.J. 74 (2007).
Moreover, Roddy's testimony clearly confirmed the testator's
intent to bequeath his estate to Brandon. Judge Batten's
conclusion honored the testator's intent. Therefore, we find no
miscarriage of justice to warrant a new trial.
Affirmed.
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