IN THE MATTER OF THE ESTATE OF FELIX BRAUNIN THE MATTER OF THE PROBATE OF THE LOST WILL OF SYLVIA BRAUN(O-9701 AND P-3275, UNION COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3816-14T2
A-2861-15T2
IN THE MATTER OF THE ESTATE
OF FELIX BRAUN.
____________________________
IN THE MATTER OF THE PROBATE
OF THE LOST WILL OF SYLVIA
BRAUN.
____________________________
Argued telephonically October 4, 2017 –
Decided November 2, 2017
Before Judges Reisner, Gilson and Mayer.
On appeal from the Superior Court of New
Jersey, Chancery Division, Probate Part, Union
County, Docket Nos. O-9701 and P-3275.
Fredda Katcoff argued the cause for appellant
Richard Belott, Executor of the Estate of
Felix Braun, in A-3816-14 (Rabner Baumgart
Ben-Asher & Nirenberg, PC, attorneys; Ms.
Katcoff, on the briefs).
Steven B. Lieberman argued the cause for
appellant Estate of Courtney Braun Ganz in A-
2861-15.
Stacey Boretz argued the cause for respondents
Tamara Bernstein, the Estate of Sylvia Braun,
the Estate of Norma Bernstein, and Hadassah,
the Women's Zionist Organization of America,
Inc. (Lindabury, McCormick, Estabrook &
Cooper, PC, attorneys; Peter M. Burke, on the
brief).
PER CURIAM
These two appeals, which we have consolidated for purposes
of this opinion, concern disputes over the respective estates of
Felix Braun and his wife Sylvia Braun.1 In A-3816-14, Richard
Belott, the executor of Felix's estate, appeals from a March 16,
2015 order, denying his application to enforce a purported 2014
settlement of Sylvia's elective share lawsuit against Felix's
estate.2 In the second appeal, A-2861-15, the executor of the
estate of the couple's daughter, Courtney Braun Ganz, appeals from
a November 16, 2015 order, entered after a plenary hearing,
admitting a copy of Sylvia's April 27, 2010 will to probate.
After reviewing each separate record, we agree with Judge
Camille M. Kenny that the purported 2014 settlement was not
enforceable because, on its face, the document indicated that the
parties had not yet reached agreement on material provisions. With
respect to the 2010 will, we find no basis to disturb Judge Kenny's
well-explained factual findings, based in large part on her
1
For ease of reference and intending no disrespect, we will refer
to the Braun family members by their first names.
2
After the trial court declined to enforce the settlement,
Sylvia's estate executrix withdrew the elective share complaint,
thus making the March 16, 2015 order ripe for appeal.
2 A-3816-14T2
evaluation of witness credibility. Based on the facts as Judge
Kenny found them to be, there was sufficient credible evidence to
support her conclusions, by clear and convincing evidence, that
Sylvia did not destroy the original 2010 will and that the copy
should be admitted to probate. Accordingly, we affirm the orders
on appeal in both cases.
I
We discuss each appeal separately, although they have some
undisputed facts in common. We begin with A-3816-14, the dispute
over Felix's estate. Some brief background is helpful to put the
issues in context. In 2007, Felix executed a will that left the
bulk of his estate in trust for the couple's daughter Courtney,
with the remainder to go to Courtney's daughter Molly after
Courtney's death. He left no specific bequests for Sylvia in his
will. However, the trust referenced in his will made provision
for Sylvia to the extent Felix's estate exceeded $3.5 million.
Felix died in February 2008. In September 2008, Sylvia filed a
lawsuit seeking an elective share of Felix's estate. Both Courtney
and the estate counterclaimed against Sylvia for allegedly
misappropriating Felix's assets. Thereafter, Courtney filed a
guardianship suit seeking to have Sylvia declared mentally
incapacitated.
3 A-3816-14T2
The court eventually dismissed the guardianship suit, but the
litigation left Sylvia feeling alienated from her daughter. There
is no dispute that in 2010, Sylvia executed a new will that
specifically disinherited Courtney. Instead, the will left
Sylvia's entire estate in trust for the care of two disabled
relatives – her sister Norma Bernstein and Norma's daughter Tamara.
The will provided that after the deaths of Norma and Tamara, the
bulk of the trust assets would go to various religious charities.
From the trust remainder, Sylvia also left $2000 bequests to
Felix's grandchildren by a prior marriage and $10,000 to Sylvia's
granddaughter Molly.
Meanwhile, the litigation over Felix's estate continued. In
2011, the parties, all of whom were represented by counsel, went
to mediation. The mediation resulted in a written settlement
agreement signed by the parties' attorneys, including Courtney's
counsel. The 2011 agreement required Felix's estate to put about
$900,000 in a trust for Sylvia as income beneficiary, with the
remainder to go to Courtney, or to Molly if Courtney predeceased
Sylvia. Sylvia also agreed to change her will to leave one-third
of her net estate in trust to Courtney, with the remainder in
trust for Molly. Sylvia further agreed to give Courtney ownership
of a condominium in which Courtney was then residing, and to give
her title to a car and certain other items. However, Courtney
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refused to sign the agreement, and Sylvia filed a motion to enforce
the settlement.
After a two-day bench trial, Judge Lisa F. Chrystal issued a
written opinion on May 22, 2014, declining to enforce the 2011
settlement because she found that Courtney had not agreed to it.3
Judge Chrystal also found that schedules A and B of the settlement
were never finalized. Schedule A concerned the distribution of
jewelry and other personal property between Courtney and Sylvia
and contained hand-written notations, including "no" as to
Courtney getting a gold and ruby bracelet.
In early 2014, at a time when Sylvia was ninety years old and
in ill health, she engaged in settlement negotiations with
Courtney. Belott, who was also Sylvia's adversary in the
litigation, claimed that he nonetheless undertook to assist Sylvia
and Courtney to settle their differences, without directly
involving attorneys in the negotiations.4 The purported result of
that process was a document which Belott contended was typed by
3
Sylvia died on March 18, 2014, before the judge issued her
decision. However, the remaining parties asked Judge Chrystal to
decide the case, including making findings of fact.
4
There was some evidence that Sylvia consulted by phone with her
estate attorney, Ellen Krevsky, about a possible settlement.
However, as Krevsky certified in this proceeding and testified in
the later will contest, Sylvia never told her that she signed a
settlement agreement. Krevsky last spoke to Sylvia on March 18,
2014, the day Sylvia died.
5 A-3816-14T2
Courtney, with changes handwritten by Sylvia. In a verified
complaint to enforce the 2014 settlement, Belott asserted that
Sylvia signed the document in his presence on February 11, 2014.
However, her signature was not dated, nor was it witnessed by a
notary, and there was no line below her signature for a notary's
signature. By contrast, Belott's signature, dated February 11,
2014, and Courtney's signature, dated February 25, 2014, each
appear above a separate line on which is affixed the signature of
a notary.
In an oral opinion issued on March 13, 2015, Judge Kenny
found that the 2014 document on its face indicated that the parties
had failed to reach agreement on material terms. In the document,
the estate agreed to place $909,000 in trust for Sylvia. The
document then recited that on Sylvia's death, the trust remainder
would be turned over to an existing trust created by Felix's will,
or to a special needs trust for Courtney, "and/or" to a spendthrift
trust for Molly's benefit. The next sentence provided: "Terms to
be drafted by Attorneys." However, there was no provision
indicating agreement on how the attorneys would determine which
option to choose or what terms to include.
The next paragraph recited that Sylvia would put "between
$860,000-960,000" in a trust to generate income for her living
expenses. However, immediately above that sentence appears a
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handwritten notation "I cannot put 860,000-960,000" followed by
the initials SB. The next two sentences recite, "Said Trust will
pass to Courtney into a Special Needs Trust upon Sylvia's death
or to be agreed upon by the parties." (Emphasis added).5 The
emphasized language indicated that the parties had not firmly
agreed as to the disposition of the trust. There was also no
indication as to how Sylvia would make such a later agreement,
since it addressed a condition that would only occur upon her
death.
The next sentence continued the ambiguity: "In the alternate
[sic], a third Trust could be established to protect the money for
Molly as listed on Page 3 of this agreement." However, the
relevant paragraph on the third page provided "in the alternate
to the second Trust, or a portion of said Trust, Sylvia agrees to
allow for an immediate formation of a trust for Molly to protect
her from creditors." (Emphasis added). However, the last phrase
"Molly to protect her from creditors" was crossed out and replaced
with the handwritten words "Sylvia's protection." The initials
SB follow the handwriting. Thus, in one paragraph, Sylvia appeared
5
The approximately $900,000 to Courtney represented an enormous
increase over the amount she would have received under the 2011
settlement.
7 A-3816-14T2
to agree to create a trust for Molly, while in the next relevant
paragraph, she did not agree.
The last paragraph of the purported agreement addressed the
distribution of other estate assets. In that paragraph, Sylvia
agreed to allow her house to be searched for paperwork that might
lead to discovery of additional assets of Felix. The paragraph
continues: "She also agrees to return any items to the Estate or
what Courtney may wish, including those items listed on the 2011
agreement." (Emphasis added). However, after this typed
provision, the following words and initials appear in handwriting:
"If any assets are found Sylvia should share in them. SB"[.]
There was no provision defining what "any items" referred to or
how the parties would divide any further assets.
Additionally, the 2014 document acknowledged Courtney's
understanding that "a portion of Sylvia's Estate is intended to
fund a Special Needs Trust for Norma and Tamara Bernstein," and
that "a portion of Sylvia's Estate will be used to make donations
to several organizations of her own choosing." After the paragraph
concerning the trust for Norma and Tamara, Sylvia apparently
handwrote a note that "My sister and niece are to be taken care
of." However, although the trusts for Norma and Tamara were
central provisions in Sylvia's 2010 will, a concern repeated in
the handwritten note, the purported 2014 agreement did not address
8 A-3816-14T2
how Sylvia's estate would be able to fund those trusts after
providing Courtney with the enormous financial benefits required
by the settlement. Nor was there any specific term defining the
funding of the charitable bequests, which was the other central
concern in Sylvia's will.
As Courtney drafted it, the 2014 settlement would have
required Sylvia to place about $900,000 of her own money in a
trust that would go to Courtney on Sylvia's death, although
Sylvia's handwritten note indicated that she could not afford it.
Sylvia was also required to leave a minimum of an additional
$500,000 in a trust for Courtney. The terms of the latter trust
were not agreed on in the 2014 document but were to be "drafted
by attorneys." There was no specific agreement as to the remainder
beneficiary.
Our review of legal issues, including the interpretation of
settlements and other contracts, is de novo. Kaur v. Assured
Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009). We also
review de novo a trial court's decision that a matter can be
decided without a plenary hearing because there are no material
facts in dispute. See Davis v. Brickman Landscaping, 219 N.J.
395, 405 (2014); Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75
(App. Div. 1997).
9 A-3816-14T2
Based on the record presented to us, we share Judge Kenny's
concern that the 2014 document, and the circumstances of its
alleged negotiation, bore indicia of undue influence and
overreaching. However, like Judge Kenny, we conclude it is
unnecessary to rest our decision on that basis. As clearly appears
from our discussion of the 2014 document, it is facially and
fatally deficient due to the parties' failure to agree on multiple
material provisions. At best, the purported settlement appears
to be a preliminary document containing concepts, to which the
parties might or might not be able to agree in the future if they
could flesh out the material terms. As occurred here, an agreement
is unenforceable "[w]here the parties do not agree to one or more
essential terms." Weichert Co. Realtors v. Ryan, 128 N.J. 427,
435 (1992); see also Morton v. 4 Orchard Land Trust, 180 N.J. 118,
120 (2004).
Consequently, Judge Kenny correctly determined that there was
no enforceable settlement. Because the document was facially
unenforceable, the record was hopelessly one-sided in the non-
moving party's favor, and there was no need to hold a plenary
hearing before declining to enforce the purported agreement. See
10 A-3816-14T2
Amatuzzo, supra, 305 N.J. Super. at 474-75. We affirm the order
on appeal.6
II
Next, we address A-2861-15, the dispute over probating a copy
of Sylvia's 2010 will. Our review of Judge Kenny's decision is
deferential, because it rests on her factual findings and results
from a testimonial hearing in which she had the opportunity to
gauge the credibility of the witnesses. See Rova Farms Resort,
Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). After
reviewing the trial record, we affirm substantially for the reasons
stated in her oral opinion issued on November 2, 2015, and in her
January 26, 2016 written opinion addressing Courtney's
reconsideration motion.7 We add these comments.
There was no dispute that Sylvia's attorney, Ellen Krevsky,
had prepared the April 27, 2010 will and that Sylvia had signed
the will and taken the original with her. The issue was whether
Sylvia had destroyed the original will. The proponents of the
6
Belott's argument that the 2014 document constituted a will is
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). His alternate contention, that the
document constituted a contract to make a will, fails for the same
reasons as his argument that it constituted a settlement of the
litigation.
7
As Judge Kenny noted in her January 26, 2016 opinion, Courtney
passed away on or about January 18, 2016, while the reconsideration
motion was pending.
11 A-3816-14T2
will produced evidence from which Judge Kenny found, by clear and
convincing evidence, that Sylvia did not intend to die intestate,
did not sign a will after 2010, did not intend to revoke the 2010
will, and did not destroy it.
We briefly summarize the most pertinent trial evidence. After
Sylvia's death in March 2014, her estranged daughter Courtney had
access to Sylvia's house for at least two months, until the court
appointed a neutral party, Elizabeth Locker, as temporary estate
administrator. According to Locker's testimony, Courtney had the
keys to Sylvia's house. Courtney told Locker that she had been
in the house multiple times and had searched for Sylvia's will,
including allegedly breaking into her late father's filing
cabinet. Courtney told Locker she did not find the will. Courtney
met Locker at the house to turn over the keys, but thereafter was
uncooperative with Locker's efforts to locate bank accounts and
other estate assets. She even directed her attorneys not to give
Locker a copy of Sylvia's death certificate.
Sylvia appeared to have been a hoarder, and her home was
cluttered with bags and boxes of papers. After a long search of
Sylvia's house, during which she noted evidence suggesting that
someone else had disturbed and moved various documents, Locker
found a plastic bag containing a copy of a will dated April 27,
2010. In that same bag, she found the original of a letter from
12 A-3816-14T2
Krevsky, dated 2014. However, Locker could not find the original
of the 2010 will.
Krevsky testified that between April 25, 2013 and March 18,
2014, Sylvia had several conversations with Krevsky about possibly
changing her will. However, Sylvia always told Krevsky, "I want
to make changes to my will, but I can't do it now." Sylvia never
told Krevsky that she destroyed the April 2010 will, and Krevsky
never prepared a new will for her. Krevsky further testified that
in all of their conversations, Sylvia never wavered in her
expressed desire to leave a testamentary special needs trust for
her sister and niece. She also never changed her expressed desire
to leave the remainder of the trust to the Hadassah Hospital.
Krevsky spoke to Sylvia for the last time on March 18, 2014.
Krevsky was unable to remember the precise conversation but
believed that "it was typical of the conversations that we'[d]
been having over the last several months, that she wanted to
finalize the settlement for the estate and she wanted to make
changes to her will, but she was going to contact me." Sylvia
died later that day.
Krevsky also recalled that, even in April 2013, when Sylvia
was about to have surgery and was concerned about the outcome, she
had Krevsky prepare a living will but told Krevsky that she had
not yet decided what she wanted to do about a new will. According
13 A-3816-14T2
to Krevsky, in all of their conversations, Sylvia never told her
that she had made a final decision about changes to her estate
plan, never asked Krevsky to prepare a new will for her, and never
told her that she had destroyed her 2010 will. Krevsky also
confirmed that it was not unusual for Sylvia to lose documents and
ask Krevsky to send her copies.
In her oral opinion, Judge Kenny found Krevsky to be a
credible witness. The judge found that, as late as the day of her
death, Sylvia communicated to Krevsky that she had not settled the
litigation over Felix's estate and had not decided on changes to
her will. The judge likewise found Locker to be a credible witness
in all respects. She also credited the testimony of Sylvia's
friend, Mary Fagan, who testified to Sylvia's strong expressions
of concern over helping her sister and niece. Fagan also testified
to Courtney's apparent lack of concern for her mother's welfare.
The judge found significant Fagan's testimony that Sylvia
constantly carried around a plastic bag of papers that seemed to
be important to her. The judge noted that during her search,
Locker found such a plastic bag that contained original papers
from Krevsky and a copy of the 2010 will.
The judge found that Belott was biased in Courtney's favor
and that his trial testimony about his alleged lack of knowledge
about the 2010 will, and concerning the alleged 2014 settlement
14 A-3816-14T2
agreement, was incredible. The judge also noted that Courtney
could have testified, either in court or by de bene esse
deposition, but did not do so. She assumed that, had Courtney
testified, she would have denied destroying the 2010 will.
Without directly finding that Courtney found and destroyed
the will, Judge Kenny noted evidence that someone other than Locker
searched through Sylvia's house and could have found Sylvia's
original will. More importantly, however, Judge Kenny found by
clear and convincing evidence that Sylvia had no intent to revoke
the 2010 will. She further found that Sylvia's critical concern
was to make adequate financial provisions for her sister and niece,
and the charities that had assisted her, and that Sylvia understood
the need to have a valid will. She found that Sylvia "would never
have wanted to die intestate and worry about what would happen to
Norma and Tammy" and the charities after her death.
The judge concluded that Sylvia would not have destroyed the
2010 will without first making another will, and that up to the
date of her death Sylvia never decided on the provisions of a
replacement will. Accordingly, the judge concluded that the will's
proponents had met their burden of proof by clear and convincing
evidence, and the copy of the 2010 will would be admitted to
probate.
15 A-3816-14T2
Based on our review of the record, we find no basis to disturb
Judge Kenny's well-articulated evaluations of witness credibility,
or her factual findings. See Cesare v. Cesare, 154 N.J. 394, 411-
12 (1997); Rova Farms, supra, 65 N.J. at 483-84. We cannot agree
with appellant's argument that the judge applied the wrong burden
of proof. To the contrary, Judge Kenny appropriately held the
will's proponents to the clear and convincing evidence standard,
most recently articulated by this court in In re Estate of Ehrlich,
427 N.J. Super. 64, 75-76 (App. Div. 2012). Based on the judge's
factual findings, which are supported by substantial credible
evidence, the proponents clearly and convincingly satisfied their
proof burden.
Appellant contends that Judge Kenny should have applied the
following proof standard: "the proof necessary to rebut the
presumption of revocation must be sufficient to exclude every
possibility of a destruction of the will by the testator himself."
In re Davis's Will, 127 N.J. Eq. 55, 57 (E. & A. 1940). Our courts
have not cited that standard in a published opinion since the
1940s. See In re Estate of Jensen, 141 N.J. Eq. 222 (Prerog. Ct.
1947), aff'd o.b., 142 N.J. Eq. 242 (E. & A. 1948). In fact, when
articulated in Davis, supra, the court relied on the lack of clear
and convincing evidence and "[did] not find it necessary to rely
upon [the legal principle] as relates to the exclusion of every
16 A-3816-14T2
possibility of destruction by the testatrix." Id. at 60.
Moreover, the standard seems inconsistent with recent legislation
aimed at implementing a decedent's testamentary intent and making
it easier to probate an informal will and avoid intestacy. See
N.J.S.A. 3B:3-3.
However, even if we apply the standard, Judge Kenny found
clear and convincing evidence that Sylvia understood that she
needed a will, would never have wanted to die intestate, would
never have left her sister and niece unprovided for, and had no
intent to revoke her 2010 will. Added to that is clear and
convincing evidence that Courtney had access to the house for
months, admitted searching for the will, and had a strong financial
motive to destroy the original will if she found it. In the
context of this case, there was clear and convincing evidence
sufficient to "exclude every possibility" that Sylvia destroyed
her 2010 will.
Based on factual assertions the trial judge did not credit,
appellant further contends that Judge Kenny should have
"reconcile[ed]" the 2010 will with the purported 2014 settlement
and other "subsequent writings." The argument is contrary to the
facts found by Judge Kenny - including her finding that Sylvia
never decided on the terms of a new will - and is without sufficient
17 A-3816-14T2
merit to warrant further discussion. R. 2:11-3(e)(1)(E). We
affirm the November 16, 2015 order on appeal.
Affirmed.
18 A-3816-14T2