IN THE MATTER OF THE ESTATE OF JOSEPHINE MACDONALD (P-215616, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3145-17T4
IN THE MATTER OF THE
ESTATE OF JOSEPHINE
MACDONALD, deceased.
__________________________
Submitted February 6, 2019 – Decided March 6, 2019
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Passaic County, Docket No. P-
215616.
Douglas J. Kinz, attorney for appellants Warren
MacDonald, III, Heather MacDonald, Ashley Minder
and Kathleen MacDonald.
Trapanese & Trapanese, attorneys for respondents Lori
Scheidemann, Executrix, and Estate of Josephine
MacDonald (Jeffrey J. Trapanese, on the brief).
PER CURIAM
Plaintiffs Warren MacDonald III, Heather MacDonald, Ashley Minder,
and Kathleen MacDonald appeal from a February 5, 2018 order, dismissing their
amended verified complaint seeking to set aside the September 16, 2016 will of
decedent Josephine MacDonald and admit to probate a prior will from 2010 and
a 2011 codicil. On this appeal, our review is de novo. See Banner v. Hoffmann-
La Roche Inc., 383 N.J. Super. 364, 373-74 (App. Div. 2006). We conclude that
the amended verified complaint stated a cause of action, and the trial court erred
in dismissing the complaint without permitting plaintiffs to take discovery.
Therefore, we reverse the order on appeal and remand this matter to the trial
court for further proceedings.
Because we are reversing on procedural grounds, the essential facts can
be stated briefly. Plaintiffs, who were decedent's daughter-in-law and
grandchildren, asserted that in a prior will, decedent had left them substantial
assets, but she disinherited them in her 2016 will. Plaintiffs alleged that around
the time decedent executed the 2016 will, she was mentally confused and
sometimes delusional, and lacked testamentary capacity. They also alleged that
decedent's daughter exercised undue influence so as to cause her mother to
disinherit plaintiffs and leave her entire estate to the daughter. Viewed
indulgently, with an eye toward discerning a cause of action, Printing Mart-
Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989), the facts pled in the
amended complaint were sufficient to state a cause of action. See In re Estate
A-3145-17T4
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of Folcher, 224 N.J. 496, 512 (2016) (undue influence); In re Will of Liebl, 260
N.J. Super. 519, 524-25 (App. Div. 1992) (lack of testamentary capacity).
On November 9, 2017, the trial court issued a detailed case management
order, setting dates for discovery, a pretrial conference, and a trial. The parties,
in fact, propounded interrogatories, document demands, and deposition notices
on each other. However, without providing any discovery, defendants (the
Estate and the daughter) filed what they characterized as a motion to dismiss the
complaint pursuant to Rule 4:6-2(e).1 The motion was supported by
certifications essentially setting forth defendants' side of the case, including
certifications from the daughter and the attorney who prepared the will. Over
vigorous objection from plaintiffs' counsel - pointing out that he had not
obtained any discovery yet, including decedent's medical records and
information concerning certain assets left to his clients in the prior will - the
trial court converted the motion to dismiss to a summary judgment motion and
dismissed the complaint. See R. 4:6-2.
1
Before plaintiffs filed the amended complaint, defendants' counsel had
voluntarily provided plaintiffs' counsel with copies of decedent's prior will from
2010 and the 2011 codicil. However, defendants did not respond to plaintiffs'
interrogatories, document demands or deposition notices served after the case
management conference.
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"Generally, we seek to afford 'every litigant who has a bona fide cause of
action or defense the opportunity for full exposure of his case.' When 'critical
facts are peculiarly within the moving party's knowledge,' it is especially
inappropriate to grant summary judgment when discovery is incomplete."
Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) (citations
omitted).
Reviewing the record with that standard in mind, we conclude that the
trial court acted prematurely in dismissing the complaint based on defendants'
one-sided presentation of evidence, without allowing plaintiffs to take any
discovery. We appreciate that the court may have believed plaintiffs' case was
weak and was concerned that the estate would be consumed with attorneys' fees.
Nothing precluded the court from carefully managing discovery, or even
permitting defendants to move for partial summary judgment after relevant
discovery was complete on a particular issue. However, it was premature and
improper to dismiss the complaint on summary judgment without permitting
plaintiffs to obtain any discovery.
Accordingly, we reverse the order on appeal, reinstate the amended
verified complaint, and remand this matter to the trial court.
Reversed and remanded. We do not retain jurisdiction.
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