A COUNTRY PLACE CONDOMINIUM ASSOCIATION VS. MAROECHEABDELHAK(DC-12065-14, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-0154-15T2
IN THE MATTER OF EVELYN
WORLEY, an incapacitated
person.
_____________________________
DWIGHT WORLEY and DANIEL
WORLEY,
Plaintiffs-Appellants/
Cross-Respondents,
v.
RICHARD WORLEY,
Defendant-Respondent/
Cross-Appellant.
_____________________________
Argued February 6, 2017 – Decided March 28, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Gloucester County,
Docket No. P-13-00468.
Ronald P. Sierzega argued the cause for
appellants/cross-respondents (Puff &
Cockerill, LLC, attorneys; Susan C. Carpenter,
on the briefs).
Dante B. Parenti argued the cause for
respondent/cross-appellant (Hoffman DiMuzio,
attorneys; Mr. Parenti and Ryan S. Hoffman,
on the briefs).
Thomas A. Hagner argued the cause for
respondent Evelyn Worley (Hagner & Zohlman,
LLC, attorneys; Mr. Hagner and Thomas J.
Hagner, on the briefs).
PER CURIAM
In this matter, we review the judicial determinations
rendered, subsequent to a trial, regarding the care and
guardianship of Evelyn Worley (Evelyn)1 and the subsequent
disposition of her assets. Two of Evelyn's three surviving sons,
Dwight and Daniel,2 commenced this action against their brother
Richard, following the execution of a Power of Attorney (POA) and
attempted modification to the named beneficiary on an investment
account. After a review of the record in light of the applicable
legal principles, we affirm the rulings as to the validity of the
POA executed in favor of Richard, but reverse the court's
determination that changed the beneficiary on a financial account
to include all of Evelyn's surviving sons.
I.
We derive our summary of the facts from the evidence presented
at trial over several days in April and May 2015. In 2009, Evelyn
1
The parties are referred to by their first names for the clarity
and ease of the reader as they share a last name.
2
A fourth son, Roger, predeceased Evelyn.
2 A-0154-15T2
was diagnosed with mild dementia and potential onset of Alzheimer's
disease. At the time, she was living in her own home and managing
her daily affairs. Daniel and Richard assisted her with some
tasks around the house and took her to medical appointments.
Richard had begun handling Evelyn's checking account in 2007 in
order to pay her bills. He did not have access to her savings
account.
Dwight handled Evelyn's finances, was named executor in
Evelyn's 2008 Will, and was her living representative in her health
care directive prepared that same year. Dwight had her sign a POA
in 2005. In the Wills executed by Evelyn in 1993 and 2008, she
distributed her assets equally among her sons. The parties
stipulated that Evelyn was competent when she signed all of these
documents.
A.
While working as a financial advisor in 1997, Dwight had
assisted Evelyn in opening a Transfer on Death (TOD) account with
his company, Waddell & Reed. He explained to his mother that the
money in the account was hers as long as she was alive. Dwight
was designated as the sole beneficiary on the account, and he told
his mother that after her death, the money would pass to him. The
3 A-0154-15T2
account was initially funded with a $100,000 investment.3 The
existence of this account was unknown to all of the other brothers
until this litigation. Dwight testified that, as a seller of
financial products, he had a confidential relationship with his
clients and could not discuss a client's account with anyone else,
including its existence.
In September 2011, Dwight sent a letter to his mother
enclosing a POA for a different investment account. Evelyn
executed the form which designated Dwight as her POA.
B.
In Fall 2011, Evelyn's sons began investigating local
assisted living facilities, anticipating that Evelyn might require
more care than could be given to her at home. A facility was
chosen and Evelyn began living there in November 2011. Although
amenable to the move at first, Evelyn was complaining by the end
of the third week and told each of her sons that she wanted to go
home.
On December 10, 2011, Richard brought Evelyn to meet with an
attorney, Christopher Manganello, to discuss the preparation of a
new POA. Manganello prepared the document which Evelyn signed on
December 14. The attorney made a video recording of his meeting
3
At the time of the hearing in 2014 the account was valued at
$250,000 and represented approximately 42% of Evelyn's estate.
4 A-0154-15T2
with Evelyn that day. He explained that he did so "to make sure
there was some type of record to show that this woman was oriented
as best as she could be at a time and place and really meant to
do what we were trying to do that day." He also suspected that
the new POA would become an issue between the brothers. He stated:
"So, I wanted some type of documentation for two reasons; to help
protect my client and her wishes, but also to protect me as well."
Manganello testified that Evelyn was clear that she wanted
Dwight removed from "having decision making power as [her] power
of attorney and also to be able to ensure that she could leave
[the assisted care facility]." Evelyn told him that Dwight did
not communicate with her and that she felt more comfortable with
Richard. Manganello described Evelyn as "feisty," "engaging," and
"funny." "She seemed very with it . . . . She did not seem in
any way disengaged or . . . any different than anybody else that
comes to my office. She was of sound mind and . . . capacity."
Richard removed Evelyn from the assisted care facility in
late December 2011. She remained in her home with a health care
aide initially, and then full-time live-in help was required. In
November 2013, Evelyn moved to a nursing home.4
4
At the time of the appellate oral argument in February 2017,
Evelyn reportedly was still living in the nursing home.
5 A-0154-15T2
C.
After the execution of the POA in December 2011, Richard
learned about the Waddell and Reed account and contacted the firm
on several occasions. He advised the firm that he wished to have
the existing POA designating Dwight replaced with the newly
executed one. There was no discussion of the beneficiary on the
account.
Richard contacted Waddell again in March 2012 requesting a
history of the account. The account representative needed to
confirm with Evelyn her acquiescence with the request. During the
conversation, Evelyn was unable to remember her social security
number and she asked Richard for the information. Later that
month, Richard called Waddell and stated that his mother "was made
aware of some problems on her account as far as the way that it's
set up and everything. She wanted to make some changes today."
The account representative again spoke with Evelyn who was unable
to provide her social security number and date of birth without
prompting from her son. Evelyn gave permission for the
representative to speak with Richard, who requested that Dwight
be removed as the designated beneficiary and that Evelyn's estate
be substituted as the beneficiary on the account. Richard also
asked for an address change on the account. After being instructed
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to send a written request for change of beneficiary, Richard asked
that the original application form be provided to him as well.
A senior regulatory counsel and vice president of Waddell,
Amy Rush, testified at the trial. Rush explained the training
provided to the company's customer service representatives on
senior abuse issues. She said both March conversations raised a
"red flag" due to Evelyn's inability to remember her social
security number and birth date, and the substance of the questions
being asked by Richard. Rush testified further that she received
a court order from Dwight during this timeframe that voided
Richard's POA. The order required Richard to serve this notice
on Waddell, which he had not done. She described this as "a huge
red flag" and she instructed the customer service department not
to distribute any money from the account, send out statements, or
change the account's address. Rush stated that the beneficiary
on the account was not changed as instructed by a court order that
was subsequently presented to Waddell, and because Evelyn had
never directed the change herself.
D.
In January 2012, Manganello prepared a Will and healthcare
directive for Evelyn's signature. The only change made to the
Will was to substitute Richard as the executor; he was also named
as the healthcare representative on the living will. Manganello
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testified that he was certain that Evelyn wanted these documents
prepared.
II.
In March 2012, Dwight and Daniel (plaintiffs) presented an
order to show cause and verified complaint seeking (1) to nullify
the December 2011 POA as a product of the undue influence on Evelyn
by Richard (defendant); and (2) a disclosure of any financial
changes made to Evelyn's accounts by Richard during his capacity
as designated POA. The order to show cause was granted.
On April 3, 2012, the chancery judge entered a joint consent
order in which the parties agreed to its provisions until the
final resolution of the matter. The order provided that: (1) the
POA in favor of Richard executed by Evelyn on December 14, 2011
was void; (2) the will prepared by Manganello and executed by
Evelyn was void; (3) Evelyn's financial assets would be managed
by Dwight;5 (4) Richard would manage Evelyn's checking account for
her ordinary and usual monthly expenses; (5) Evelyn was to undergo
a competency examination; and (6) Gerald Sinclair, Esq., was
appointed by the court as counsel for Evelyn. The order required
service by Richard's counsel on all of Evelyn's health care
5
The order further clarified that no funds would be withdrawn
from the accounts other than to care for Evelyn and that there
would be no change to title or beneficiary designation on any
account owned by Evelyn.
8 A-0154-15T2
providers, assisted living facilities, and applicable financial
institutions.
Plaintiffs amended the complaint in March 2013, seeking their
appointment as co-guardians of their incapacitated mother and her
estate. In his answer and cross-claims, Richard requested that
he be appointed guardian for Evelyn. He also alleged that the
creation of the Waddell investment account was a breach of the
fiduciary duty owed by Dwight.
III.
At trial, both parties presented witnesses to testify
regarding Evelyn's mental capacity and cognitive functioning.
Cynthia Furman, a registered nurse with Gloucester County Senior
Services, stated she was contacted by Evelyn's family in November
2010 to assess Evelyn and provide care options for her.
Nurse Furman noted that although Evelyn was able to take care
of her personal needs and hygiene, she required assistance from
others to complete housework and shopping, prepare meals, take
medication, and manage her finances. She found Evelyn to be only
minimally impaired in her decision-making, although she exhibited
difficulty making decisions in unfamiliar circumstances. In
Furman's opinion, Evelyn's short term and procedural memory were
impaired.
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Mary Ann Poekert was the home health companion assigned to
Evelyn from 2010 to 2012. While working with Evelyn in 2011,
prior to her admittance to the assisted living facility, Poekert
stated that "[Evelyn] was having a lot of trouble remembering
. . . . Then she was telling me that . . . there's people in here
having parties at night. And she told me there was a man that
would come into her bedroom and try and get her." She noticed an
improvement in Evelyn after she returned from the assisted living
facility. Poekert also recalled that Evelyn told her that "she
wanted Rick to take care of everything, to be her power of
attorney, to take care of her, to do whatever needed to be done."
Poekert denied knowing anything about Evelyn's investment
accounts, but stated that Evelyn knew Dwight had control of an
account and said "she didn't want one son having control of
everything." In response to questioning, Poekert added that Evelyn
wanted her sons to all be treated the same. "[S]he said when she
passed away, she wanted everything to be, you know, divided up
evenly."
Plaintiffs presented Barry Rovner, M.D., a psychiatrist
specializing in Alzheimer's disease, as an expert. Dr. Rovner
reviewed Evelyn's medical records and listened to Manganello's
video tape. He concluded that Evelyn was disoriented to time, and
she did not understand why she was at the attorney's office in
10 A-0154-15T2
December 2011. Based on the information presented to him, Dr.
Rovner opined that Evelyn lacked the capacity to understand what
a POA was and lacked the ability to execute her Will knowingly.
Plaintiffs also proffered the testimony of Danielle
DiGregorio, Psy.D., who had performed neuropsychological
evaluations of Evelyn in 2012 and 2013 at the request of Sinclair.
A month before the trial, plaintiffs advised they were naming Dr.
DiGregorio as an expert witness. No new report was provided. At
the de bene esse deposition of Dr. DiGregorio taken several days
before the commencement of trial, plaintiffs attempted to elicit
her opinion of Evelyn's mental capacity at the time of the signing
of the POA and the Will. The execution of those documents had
taken place nine months before the doctor met Evelyn, therefore,
that opinion was not contained in any of her reports.
Defense counsel objected at the deposition and renewed the
objection at trial. The chancery judge sustained the objection
and ordered the redaction of the expert's testimony regarding the
previously undisclosed opinion.
Dr. DiGregorio performed a number of tests and concluded that
Evelyn was in the mild to moderate stages of dementia. At her
second evaluation, in May 2013, the doctor noted further
deterioration in many areas of functioning.
11 A-0154-15T2
Mr. Sinclair, as court-appointed counsel, met with Evelyn on
five occasions, the first in April 2012. During those visits,
Evelyn admitted she had memory lapses but was able to discuss her
children and grandchildren cogently. Sinclair described her as
having mild dementia. The attorney asked Evelyn about the December
2011 POA on several occasions, and she consistently told him that
she "wanted Rick." She also consistently mentioned that she wanted
her three sons to share equally after her death.
Sinclair issued three reports, each recommending that Richard
be appointed the guardian of his mother, of both her person and
her property. He believed that Richard had shown the greatest
level of involvement with Evelyn and it was her own request. The
attorney felt that Richard demonstrated the "aptitude and
attitude" to be the guardian.
Richard presented Pogos Voskanian, M.D., a neuropsychiatrist,
as his expert. Dr. Voskanian described Evelyn as having a mild
degree of cognitive impairment in late 2011 and early 2012 but
opined that she had testamentary capacity at that time. Upon
reviewing Manganello's video recording of the execution of the
POA, he found Evelyn's "speech was clear," "she provid[ed] good
reasons for her choices," and she indicated a desire to be informed
regarding her own care. "[E]lderly people do not know exact dates.
. . . It does not mean lack of testamentary capacity. Actually
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people can be demented and still have testamentary capacity.
. . . Knowing the date is not [a] requirement."
IV.
On June 29, 2015, the trial judge issued a lengthy
comprehensive oral decision.6 After setting forth her findings of
fact, she rendered several legal conclusions. The judge first
found that there was a presumption of undue influence by Richard,
warranting the shifting of the burden of proof to him. She
described the special relationship between Evelyn and Richard and
the suspicious circumstances of the execution of the POA at
Manganello's office. Noting that the defendant must rebut the
presumption of undue influence by clear and convincing evidence,
the judge found that Richard had abided by his mother's wishes.
Her request was for him to remove her from the assisted care
facility in December 2011. Based on the testimony and medical
records, the judge found that Evelyn had the ability to form an
opinion, express it, and she wanted to be heard about remaining
in her own home. The judge stated: "If anything, Rick was doing
exactly what [Evelyn] wanted him to do, getting her back to her
home and out of the [assisted care facility]."
6
An order reflecting the oral decision was issued on June 30,
2015.
13 A-0154-15T2
In her decision, the judge relied on the testimony presented
regarding Dr. Morton's notes7 of his visits with Evelyn in late
2011. On December 12, 2011, Dr. Morton wrote in an office note:
It is clear to me that [Evelyn] would prefer
that her son Rick be her power of attorney to
help her with legal decisions . . . . I think
that Evelyn will do well in her own home if
she has someone there to assist her with meals
and medicine . . . . Her dementia is mild, and
she could enjoy her home for some time yet if
she had someone there to assist her full time.
The doctor also noted that Evelyn was sharper and brighter after
the change in her medication. The judge concluded:
[Evelyn] had sufficient cognitive function to
articulate her desire to live at home and her
desire for Rick to be her POA.
. . . .
I am satisfied that the evidence established
clearly and convincingly that Mrs. Worley
wanted Rick to be her POA in November 2011 and
that she had the capacity to communicate that
decision and to sign a legal document
implementing that decision.
In addressing Evelyn's capacity to sign the Will in 2012, the
judge concluded to the contrary. She stated: "There's no evidence
that Mrs. Worley told anyone that she wanted Rick to be the
executor of her Will . . . . So I'm satisfied that the proofs do
7
Reports and office records of Dr. Morton of the Elmer Family
Practice are discussed with several witnesses and admitted into
evidence. Dr. Morton did not testify, and his reports and medical
records were not provided to us.
14 A-0154-15T2
not establish clearly and convincingly that the Will was the
voluntary and knowing act of Mrs. Worley." She, therefore, found
the POA valid and enforceable, but ruled the 2012 Will was invalid.
The judge declined to award any damages, finding that the early
departure fees for Evelyn's withdrawal from the assisted care
facility in 2011 was "money well spent" as Evelyn was happy to
spend an additional two years in her home.
In addressing the TOD account, the judge determined that it
did not satisfy the requirements to be considered an inter vivos
gift. She concluded that the very nature of the account, a
transfer on death, is that the money in the account is owned by
the holder of the account; the TOD "is a conditional gift that if
there is anything in the account at the time of death, it would
go to that named beneficiary." The judge determined the account
was not an irrevocable relinquishment in ownership nor an outright
gift. Relying on Sinclair's testimony that Evelyn wished all of
her sons to be treated equally, the judge ruled that the TOD
account beneficiary should be changed to designate all three sons
in equal shares.
In a second order on June 30, 2015, the court found Evelyn
was an incapacitated person and unable to manage her own affairs.
Richard was appointed the guardian of the person and property of
Evelyn.
15 A-0154-15T2
Plaintiffs filed a subsequent motion seeking a stay of the
transfer of financial authority from Dwight to Richard until the
resolution of the appeal, and an award of counsel fees for the
guardianship application, as well as for the costs and fees
incurred defending the POA granted to Dwight in 2005. Richard
cross-moved for counsel fees for his guardianship application.
After hearing the parties' oral argument on August 12, 2015,
the judge determined that it was not feasible to split the
guardianship between Richard and Dwight because of the likelihood
of friction and further litigation. In considering the requests
for counsel fees under Rule 4:86-4(e), the judge noted her
discretion to award fees if deemed appropriate. She stated that
by the time the matter reached trial, it was not about the
guardianship as Evelyn's mental condition had deteriorated. It
was "a fight between brothers." Therefore, the judge found it
appropriate to deny attorney's fees for the majority of the action.
Plaintiffs were awarded $2500 for bringing the complaint and
defendant was awarded $2500 for his efforts in prosecuting the
guardianship. The parties were each responsible for their
remaining attorney's fees and costs.8
8
Plaintiffs' request for a stay of judgment pending appeal was
denied.
16 A-0154-15T2
V.
On appeal, plaintiffs assert that the trial judge erred in
(1) altering the beneficiary designation on the TOD account; (2)
affirming the designation of Richard as Evelyn's POA and subsequent
guardian after finding a presumption of undue influence; (3)
barring certain testimony of Dr. DiGregorio; and (4) failing to
award legal fees and costs to plaintiffs incurred by them in the
pursuit of guardianship on Evelyn's behalf and in defending the
2005 POA.
Defendant's cross appeal contends the judge failed to award
sufficient fees to him incurred in the defense of the 2011 POA.
In considering these arguments, we are mindful of our limited
scope of review. We will not "engage in an independent assessment
of the evidence as if [we] were the court of first instance." N.J.
Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433
(App. Div. 2002) (alteration in original) (quoting State v.
Locurto, 157 N.J. 463, 471 (1999)). "The factual findings of a
trial court are reviewed with substantial deference on appeal, and
are not overturned if they are supported by adequate, substantial
and credible evidence." Manahawkin Convalescent v. O'Neill, 217
N.J. 99, 115 (2014) (citations omitted). Such deference is
especially due when a trial judge's findings "are substantially
influenced by [the judge's] opportunity to hear and see the
17 A-0154-15T2
witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." Zanman v. Felton, 219 N.J. 199, 216 (2014)
(alteration in original) (citation omitted).
However, we review the trial judge's determinations on legal
issues de novo. A trial judge's "interpretation of the law and
the legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty, L.P. v.
Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted).
A.
Mindful of these standards, we turn to a review of the POA
executed by Evelyn in favor of Richard in 2011.9 Plaintiffs
contend that the disparate rulings that the POA was not the product
of undue influence, but the Will signed several weeks later was a
result of undue influence are not supported by the credible
evidence in the record. We disagree.
[U]ndue influence is a mental, moral, or
physical exertion of a kind and quality that
destroys the free will of the testator by
preventing that person from following the
dictates of his or her own mind as it relates
to the disposition of assets, generally by
means of a will or inter vivos transfer in
lieu thereof.
. . . .
9
Richard does not appeal the court's invalidation of the 2012
Will.
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Ordinarily, the burden of proving undue
influence falls on the will contestant.
Nevertheless, we have long held that if the
will benefits one who stood in a confidential
relationship to the testator and if there are
additional 'suspicious' circumstances, the
burden shifts to the party who stood in that
relationship to the testator.
[In re Estate of Stockdale, 196 N.J. 275, 302-
03 (2008) (citing Haynes v. First Nat'l State
Bank, 87 N.J. 163, 176 (1981))].
We have described a confidential relationship as
one where the "the relations between the parties are of such a
character of trust and confidence as to render it reasonably
certain that the one party occupied a dominant position over the
other and that consequently they did not deal on terms and
conditions of equality." Estate of Ostlund v. Ostlund, 391 N.J.
Super. 390, 402 (App. Div. 2007) (quoting Blake v. Brennan, 1 N.J.
Super. 446, 454 (Ch. Div. 1948)). "[A]mong the most natural of
confidential relationships is that of parent and child." Pascale
v. Pascale, 113 N.J. 20, 34 (1988).
The judge found Richard had a special relationship with his
mother. All witnesses agreed that Richard spent the most time
with Evelyn and took care of her daily needs. Evelyn herself told
many of the witnesses that she wanted Richard to be her POA because
he listened to her and spent time with her. In assessing the
requirement that there be "additional circumstances of a
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suspicious character," In re Will of Rittenhouse, 19 N.J. 376,
378-79 (1955), the judge noted the involvement of attorney
Manganello. She stated: "Mr. Manganello did not speak to Mrs.
Worley outside of the presence of Rick. [He did] not clarify
whether he represented [Evelyn] or Rick. [He did] not obtain at
least a primary care physician's opinion regarding her capacity."
The judge found that the presumption of undue influence
existed regarding the POA, and we are satisfied that she correctly
shifted the burden to defendant to rebut the presumption.
All agreed that Evelyn did not want to stay at the assisted
living facility. Within several weeks of her admission, she was
voicing her desire to return to her home to everyone with whom she
spoke. She told Sinclair and others that only Richard was
listening to her. As the judge noted:
Rick was acting on his mother's request in
taking steps to obtain a POA and remove her
from the [assisted care facility]. Mrs.
Worley was sufficiently capacitated to have a
say in whether she would live in facility or
stay in her home with paid, in-home care
service providers that she was well able to
afford.
Evelyn knew what she wanted and knew that Richard was the one to
effectuate her desire – by obtaining a POA and removing her from
the care facility. We are satisfied that the judge's conclusion
that Evelyn was not unduly influenced by Richard in obtaining the
20 A-0154-15T2
POA for her removal from the care facility is supported by the
credible evidence in the record.
In considering the 2012 Will, the evidence leads to a contrary
result. Evelyn never voiced any desire to anyone to change the
executor on her Will. She had executed at least two Wills prior
to the 2012 version; each had Dwight as the executor. There was
no evidence presented that she desired to change the executor of
her Will in 2012 to Richard. We are satisfied that the judge's
conclusion that Richard did not meet his burden of rebutting the
presumption of undue influence is supported by the record.
We disagree with plaintiffs' argument that these rulings
cannot stand as they are contrary to one another. With regard to
the POA and the 2012 Will, the judge considered the presumption
of undue influence and found plaintiffs had met their burden. When
the burden of rebuttal shifted to defendant, the court found it
was met in the case of the POA, but there was insufficient evidence
presented to rebut the presumption surrounding the Will. As a
result, when each document was considered separately, differing
legal conclusions were properly reached. Those conclusions are
supported by the credible evidence.
B.
Fifteen years before this litigation arose, Evelyn opened a
TOD account with the financial services firm where Dwight was an
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employee, thereby avoiding payment of fees and commissions. The
parties stipulated that she was competent when she opened the
account and that it was her signature on the application. Dwight
was designated as the beneficiary of the account upon her death;
that designation never changed. Evelyn executed Wills in 1993 and
2008 at which time the parties stipulated that Evelyn was
competent; the TOD account was not referenced in either Will.
Although Evelyn spoke on the phone several times with Waddell
representatives in 2012, she never requested a change in the TOD
beneficiary designation.
After determining the TOD account was not an inter vivos
gift, and relying on Sinclair's testimony, the judge concluded
that Evelyn wished to treat her surviving sons equally and that
she had a "change of mind with respect to the TOD account."
The contradictory evidence presented, however, does not
support the premise that Evelyn always treated her sons equally.
There was testimony that she gave Roger more than $100,000 during
his lifetime. Daniel testified that in 1997, the same timeframe
as the establishment of the Waddell account with Dwight, his mother
offered him a gift of $100,000 that he declined. In addition,
there was testimony that there were bank accounts opened for one
or two of the grandchildren, but not all nine. The assets in each
22 A-0154-15T2
Will executed by Evelyn were to be divided equally among the three
surviving sons; Roger's estate and heirs were not included.
The testimony of Sinclair considered by the judge was offered
subsequent to the commencement of this litigation. Evelyn was
aware of the contentious proceedings taking place among her sons
and expressed her sadness at its occurrence. It is not unusual
under the circumstances that she would express the general premise
that she wished her sons to be treated equally. Although the
judge relied on the testimony provided by Sinclair, the attorney
conceded that he never asked Evelyn specifically about the TOD
account or her desired beneficiary designation of it.
Although well aware of the deference due the judge's decision,
we find it a leap to conclude that after so many years of the
beneficiary designation remaining unchanged, Evelyn's generalized
statement that she wanted all her sons to be treated equally after
her death was a statement of her probable intent to change the
beneficiary of the TOD account. See Stephenson v. Spiegle, 429
N.J. Super. 378, 386 (App. Div. 2013) (emphasis added) (noting the
doctrine of probable intention may be used to reform mistaken
testamentary dispositions).
Evelyn stated after the inception of this litigation that she
loved her three sons equally. She was never specifically asked
about the TOD account, but provided generalized statements that
23 A-0154-15T2
her three sons should be treated equally. We are not satisfied
that the substantial credible evidence supported changing the
beneficiary designation on this non-probate asset. This
litigation centered on whether Evelyn was unduly influenced by
Richard to effect a POA in his favor and a new Will naming him as
executor. There were no similar contentions regarding the TOD
account; there were no allegations that it was wrongly established
or that Evelyn was unduly influenced in her choosing just one of
her sons as the beneficiary of the account. To the contrary, the
parties stipulated that she was fully competent at the time of the
initiation of the account. As a result, we reverse the decision
of the court regarding the TOD account; the beneficiary of the
account remains Dwight.
C.
We turn to plaintiffs' argument that Richard, having been
found to have unduly influenced his mother, should not be Evelyn's
guardian. In giving deference to the judge's finding based on her
ability to perceive witnesses and assess credibility, as we must,
we find this argument to be without merit. The judge found
Sinclair's report recommending that the guardianship not be split
to be persuasive. She noted the inability of Dwight and Richard
to cooperate throughout the litigation, and although the judge
recognized Dwight's skills as a money manager, she determined a
24 A-0154-15T2
shared guardianship would not be feasible based on the "likelihood
of friction and . . . further litigation." We are satisfied that
the judge's finding that Richard's interests are synonymous with
those of Evelyn is supported by the evidence and his appointment
as her guardian is correct.
D.
We briefly address plaintiffs' argument that the chancery
judge erroneously barred them from questioning Dr. DiGregorio on
an opinion that had not been included in her report. After the
court ordered a competency exam, Evelyn was evaluated by Dr.
DiGregorio, a geriatric neuropsychologist, who also performed a
series of objective tests in August 2012. In her report, she
concluded that Evelyn was cognitively incapacitated at that time.10
Plaintiffs identified the doctor as a fact witness who would
provide testimony regarding her evaluations.
In preparation for trial, plaintiffs scheduled a de bene esse
deposition of Dr. DiGregorio. Several days before the deposition,
plaintiffs advised defendant that they intended to use the doctor
as an expert witness. No new report nor amended report was
provided.11 At the deposition, plaintiffs' counsel sought to
10
Dr. DiGregorio performed a second evaluation and rendered an
additional report in May 2013.
11
See Rule 4:17-7.
25 A-0154-15T2
inquire of Dr. DiGregorio her opinion on the mental capacity of
Evelyn in December 2011 and January 2012 – eight months prior to
the doctor's first evaluation.
We apply a deferential approach to the trial judge's decision
to admit expert testimony and review it against an abuse of
discretion standard. Although an expert witness is generally
confined to the opinions contained in his or her report provided
in discovery, Conrad v. Robbi, 341 N.J. Super. 424, 440-41 (App.
Div.), certif. denied, 170 N.J. 210 (2001), "the logical predicates
for and conclusions from statements made in [an expert] report are
not foreclosed." McCalla v. Harnischfeger Corp., 215 N.J. Super.
160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987).
The judge found the sought-after new opinion was not a logical
predicate from the information and opinions set forth in the
doctor's expert report. It was not expected that the doctor would
provide an opinion about the state of Evelyn's mental capacity
nine months prior to their first meeting and evaluation. There
was no notice in the served reports of Dr. DiGregorio that she had
read medical reports from the applicable timeframe. The new opinion
was a complete surprise to defendant, leaving him without the
opportunity of effective cross-examination and resulting in
certain prejudice. See Westphal v. Guarino, 163 N.J. Super. 139,
146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978) (noting that the
26 A-0154-15T2
opposing party must be protected from the effect of surprise and
prejudice). We are satisfied that the trial judge did not abuse
her discretion in her decision to exclude the newly offered
opinion.
E.
Plaintiffs seek legal fees from (1) defendant for the breach
of his fiduciary duty for exerting undue influence when exercising
his POA; and (2) the Estate for legal fees and costs incurred in
defending the validity of the 2005 POA. Defendant's cross-appeal
seeks legal fees for defending the POA determined by the court to
be valid and enforceable.
New Jersey courts "have traditionally adhered to the American
Rule as the principle that governs the allocation of attorneys'
fees." Occhifinto v. Olivo Constr. Co., 221 N.J. 443, 449 (2015)
(quoting Walker v. Giuffre, 209 N.J. 124, 127 (2012)). The
American Rule "prohibits recovery of counsel fees by the prevailing
party against the losing party." In re Estate of Vayda, 184 N.J.
115, 120 (2005) (quoting In re Niles, 176 N.J. 282, 294 (2003)).
Notwithstanding New Jersey's "strong public policy against the
shifting of costs," counsel fees may be awarded in certain
circumstances. Litton Indus. v. IMO Indus., 200 N.J. 372, 404-05
(2009) (quoting Vayda, supra, 184 N.J. at 120); see also R. 4:42-
9(a)(1)-(8).
27 A-0154-15T2
One such circumstance exists when an executor or trustee
commits the tort of undue influence. "[A]n exception to the
American rule is created that permits the estate to be made whole
by an assessment of all reasonable counsel fees against the
fiduciary that were incurred by the estate." Niles, supra, 176
N.J. at 298-99. Plaintiffs request the estate be reimbursed the
monies expended by Richard to attorney Manganello for the drafting
of the POA and new Will. The chancery judge declined to do so.
We see no error in her ruling. As noted, although the judge found
Richard had unduly influenced his mother in obtaining the POA,
nevertheless, she found the document to be valid and enforceable
as he was acting to achieve his mother's wishes. Richard did not
strip the estate of any assets, and his actions did not rise to
the pernicious level envisioned in In re Estate of Folcher, 224
N.J. 496, 511 (2016), and Niles.
As to the argument that plaintiffs are entitled to counsel
fees for the defense of the 2005 POA, we find it likewise to be
without merit. The 2005 POA was not the subject of the litigation.
Evelyn did not wish to remain in the assisted care facility; Dwight
would not listen to her wishes. Therefore, Evelyn desired a change
in the POA to Richard who was willing to accede to her desire to
move back to her home. The court found Evelyn had the capacity
to communicate her decision for Richard to be her POA and to sign
28 A-0154-15T2
the legal document. The 2011 POA was the crux of the case, not
the former document.
The judge awarded $2500 in fees to both parties under Rule
4:86-4(e), authorizing compensation of counsel fees for the party
seeking guardianship. Both Dwight and Richard sought the
guardianship of their mother. In assessing fees to both sides,
the judge remarked that "this was not really about the guardianship
. . . . Rather, this was straight-out a fight between brothers.
. . . [Evelyn] should certainly not have to fund the sole source
of stress in her life." We see no reason to disturb the judge's
ruling.
In addressing the cross-appeal, we reiterate the premise of
the American rule governing this fee consideration. We reject
defendant's argument that a contractual entitlement to fees
existed under the 2011 POA. Although the document contained a
clause that the agent in the POA had the authority to sue and
settle suits, it did not reference counsel fees. There is no
pertinent exception to the American rule for the award of further
fees to defendant.
The June 30, 2015 orders are affirmed with the exception of
the court's ruling pertaining to the TOD account. In accordance
with the above discussion, we reverse the portion of the order
29 A-0154-15T2
that re-designated the beneficiary of the account and restore
Dwight Worley as the account beneficiary.
Affirmed in part, reversed in part.
30 A-0154-15T2