IN THE MATTER OF INTER VIVOS TRUST, FLORENCE FISHER, ETC. IN THE MATTER OF THE ESTATE OF FLORENCE FISHER(P-000325-15 AND P-000324-15, BERGEN COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0378-16T3
A-0515-16T3
IN THE MATTER OF INTER VIVOS
TRUST, FLORENCE FISHER,
Grantor (10-15-07).
______________________________
IN THE MATTER OF THE ESTATE
OF FLORENCE FISHER, Deceased.
_______________________________
Submitted September 26, 2017 – Decided November 28, 2017
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket Nos.
P-000325-15 and P-000324-15.
Meredith A. Fisher, appellant pro se.
Sills Cummis & Gross, PC, attorneys for
respondent Allan C. Bell (Thomas S. Novak, of
counsel and on the brief; Gregory E. Mulroy,
on the brief).
PER CURIAM
These consolidated matters involve the efforts of plaintiff
Meredith A. Fisher to void estate planning decisions made by her
mother, the late Florence Fisher.
In A-0378-16 (the trust action), plaintiff sought to remove
defendant Allan C. Bell as trustee of an inter vivos trust created
by Florence1 for plaintiff's benefit, alleging he breached his
fiduciary duty of loyalty. The trial court granted defendant's
motion for summary judgment to dismiss plaintiff's complaint and
denied plaintiff's cross-motion of summary judgment, finding
plaintiff presented no proof of defendant's improper
administration of the trust.
In A-0515-16 (the will action), plaintiff alleged undue
influence exerted by defendant, plaintiff's sister, Judith, and
her husband, in the preparation of Florence's will, warranting
removal of defendant as executor, revocation of the letters
testamentary, and voidance of will provisions that reduced
plaintiff's share. The court granted defendant's motion for
summary judgment and denied plaintiff's cross-motion of summary
judgment, finding plaintiff's complaint was untimely filed and
without good cause for an extension of time under Rule 4:48-2.
The court also determined that, as to the merits, plaintiff
presented no evidence undue influence had been exercised over
Florence to warrant the relief plaintiff requested.
1
We use her first name out of convenience because she and plaintiff
have the same last name; we mean no disrespect.
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While we disagree with the court that plaintiff's complaint
in the will action should have been dismissed as untimely filed,
we conclude plaintiff's appeals of the court's summary judgment
orders are without merit for the reasons expressed by the court
that plaintiff had not provided factual support to void her
mother's estate planning decisions.
I.
Florence began planning her estate many years ago. In 1997
and 1999, she executed wills that evenly divided her estate among
her three daughters. In 2007, she established separate trusts for
her daughters with the assistance of defendant, an estate attorney.
Because plaintiff contracted Lyme disease and suffered from its
ill effects, Florence designated defendant as the sole trustee to
administer her trust. Her sisters, however, were named as co-
trustees with defendant in their respective trusts.
In November 2008, Florence executed a new will, which
reflected that plaintiff's share of her estate be reduced by loans
Florence had given to plaintiff for various investments and
expenses. Six months later, Florence further modified her will
through a codicil, which, relevant to this appeal, divided
plaintiff's share into halves: one half would be placed into
plaintiff's trust, and the other half would be put into trust for
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the benefit of plaintiff's daughter who is also Florence's
granddaughter.
In 2011, Florence's health worsened and plaintiff's sisters
were appointed Florence's co-guardians. The appointment also
directed the co-guardians to pay plaintiff's reasonable daily
living expenses, which would be considered advancements of
plaintiff's share of Florence's estate.
About four years later, Florence passed away. On January 30,
2015, her will was admitted to probate and letters testamentary
were issued to defendant. Over six months later, on August 21,
plaintiff, a New York resident, filed two separate verified
complaints - the will action and the trust action. Both actions
were dismissed on September 1, 2016, when the trial court issued
orders and a single written opinion granting defendant's summary
judgment motions and denying plaintiff's cross-motions for summary
judgment. This appeal ensued.
II.
Before addressing the specific arguments raised by plaintiff,
we briefly discuss the principles guiding our review of the trial
court's summary judgment decisions.
Appellate review of a ruling on a motion for summary judgment
is de novo, applying the same standard governing the trial court.
Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014).
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Thus, we consider, as the motion judge did, "whether the competent
evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor
of the non-moving party." Id. at 406 (quoting Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Summary judgment
must be granted "if 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." Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)
(quoting R. 4:46-2(c)).
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). A court must be "guided by the same evidentiary
standard of proof — by a preponderance of the evidence or clear
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and convincing evidence — that would apply at the trial on the
merits." Brill, supra, 142 N.J. at 533. "[C]onclusory and self-
serving assertions by one of the parties are insufficient to
overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41
(2005) (citations omitted). We accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478
(2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).
Measured against this standard, we are convinced the court
correctly granted summary judgment to defendant and denied summary
judgment to plaintiff in both actions.
A.
In the trust action, plaintiff essentially sought removal of
defendant as trustee under N.J.S.A. 3B:14-21(c), which provides a
fiduciary may be removed if he or she "[e]mbezzles, wastes, or
misapplies any part of the estate for which the fiduciary is
responsible, or abuses the trust and confidence reposed in the
fiduciary." She claimed that due to defendant's choices in
administering other unrelated trusts, he was unable to properly
administer her trust.
Courts are reluctant to remove a fiduciary appointed by a
grantor absent specific proof of fraud, gross carelessness or
indifference. See Braman v. Central Hanover Bank & Trust Co., 138
N.J. Eq. 165, 196-97 (Ch. 1946). Not only should the court be
6 A-0378-16T3
reluctant to remove a fiduciary, but "so long as an executor or
trustee acts in good faith, with ordinary discretion and within
the scope of his powers, his acts cannot be successfully assailed."
Connelly v. Weisfeld, 142 N.J. Eq. 406, 411 (E. & A. 1948).
Disagreement between a beneficiary and a fiduciary is not cause
for removal. In re Koretzky, 8 N.J. 506, 531 (1951). "[T]here
must be a demonstration that the relationship will interfere
materially with the administration of the trust or is likely to
do so." Wolosoff v. Csi Liquidating Tr., 205 N.J. Super. 349,
360-61 (App. Div. 1985). Indeed, to remove a trustee there must
be facts to warrant such action. See Matter of Konigsberg, 125
N.J. Eq. 216, 219 (Prerog. Ct. 1939).
Based upon the record, we agree with the trial court that
plaintiff failed to demonstrate defendant acted improvidently in
managing plaintiff's trusts. Confronted with defendant's
certification that the trust's assets have been properly managed,
plaintiff presented no evidence of fraud, indifference, bad faith,
or carelessness by defendant. There is also no merit to her
assertion that the trust is in future jeopardy unless defendant
is removed as trustee. R. 2:11-3(e)(1)(E).
B.
In the will action, we agree with plaintiff that the trial
court should not have granted summary judgment to defendant under
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Rule 4:85-1, because as a non-state resident, she did not file her
complaint within six months of the issuance of testamentary letters
to defendant. We therefore conclude the court mistakenly applied
its discretion by not allowing plaintiff a thirty-day filing
extension for good cause under Rule 4:48-2.
The record shows that within six months of defendant's
appointment as executor, plaintiff attempted to file a pro se
complaint making the same allegations and seeking the same relief
set forth in the two complaints she later filed that are the
subject of this appeal. However, a court clerk did not accept her
filing; instead advising her that she had to file two separate
complaints. Plaintiff contended her preparation of the two
complaints was delayed when she became ill. She also argued she
had to represent herself because her sisters delayed payment of
her trust funds in order to prevent her from hiring a lawyer to
contest the will.
We agree with the court that plaintiff's inability to afford
counsel is not a basis for a good cause finding. In re Estate of
Schifftner, 385 N.J. Super. 37, 44 (App. Div.), certif. denied,
188 N.J. 356 (2006). We also take no issue with the court's
finding that there was no specific support for plaintiff's claim
that her illness prevented her from meeting the filing deadline.
Nevertheless, we conclude the court should have recognized
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plaintiff's specific and non-speculative allegation that her
filing would have been timely but for the court clerk's action.
Under our summary judgment guidelines, these factual allegations
should have been viewed in the light most favorable to plaintiff
in her opposition to defendant's summary judgment motion. While
her initially submitted complaint may have required a subsequent
amendment to conform to the court rules, it should have been
considered timely filed.
Notwithstanding this conclusion, we see no reason to reverse
the court's summary judgment dismissal of the will action because
the court properly assessed the merits of plaintiff's complaint
in finding there was no proof that Florence's will was the product
of undue influence. The following principles guide our analysis.
It is well settled that "it is generally presumed that the
testator [is] of sound mind" to execute a will. Haynes v. First
Nat'l State Bank, 87 N.J. 163, 175-76 (1981) (citation omitted).
That presumption can be overcome, however, upon a showing of undue
influence. See id. at 176. "[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[.]" In re Estate of Folcher, 224 N.J. 496, 512 (2016)
9 A-0378-16T3
(alteration in original) (quoting In re Estate of Stockdale, 196
N.J. 275, 302-03 (2008)).
To be entitled to a presumption of undue influence, the party
challenging the will must show two elements: a confidential
relationship between the testator and beneficiary, and "the
presence of suspicious circumstances." Matter of Will of Liebl,
260 N.J. Super. 519, 528 (App. Div. 1992) (citing Haynes, supra,87 N.J. at 176), certif. denied, 133 N.J. 432 (1993)). Since the
parties do not dispute that defendant, Judith and her husband, had
a confidential relationship with Florence, we focus on whether
suspicious circumstances existed. "Suspicious circumstances" are
those circumstances that "require explanation." Haynes, supra,87 N.J. at 176 (citation omitted). Further, "[s]uch circumstances
need be no more than 'slight.'" Ibid. (citation omitted).
Plaintiff alleges defendant, Judith and her husband, exerted
undue influence on Florence by having Florence execute provisions
in her will that: (1) deducted loans, interest and legal fees on
Florence's loans to Meredith from her inheritance; (2) established
a trust to pay for the remaining college expenses of plaintiff's
daughter to be funded out of plaintiff's inheritance; (3) appointed
defendant as sole trustee of plaintiff's trust; and (4) barred
plaintiff or her issue from ever serving as trustee of plaintiff's
trust. Plaintiff contends Florence was susceptible to their undue
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influence because Florence executed the will when she was eighty-
three years old, suffering from dementia, insecure due to the loss
of her financial advisor, and extremely stressed due to her concern
about plaintiff and plaintiff's daughter. Plaintiff also
complained that Judith admitted she influenced Florence to place
plaintiff's share of Florence's estate assets in trust, and took
Florence to sign the will. Plaintiff maintains defendant did not
provide "truly independent advice" to her mother.
We agree with the trial court that these allegations are not
supported by competent evidence in the record. Hence, the court
properly determined plaintiff did not demonstrate suspicious
circumstances sufficient to entitle her to a presumption of undue
influence by defendant, Judith and her husband.
Finally, we address plaintiff's assertion that defendant
should be removed as executor because he breached his fiduciary
duties. Defendant contends the issue is moot due to his filing
of his final account for approval and distribution. We agree.
Furthermore, based upon the same legal standard we applied above
to reject plaintiff's claim that defendant should be removed as
trustee of her trust, we also conclude plaintiff presented no
evidence that defendant did not properly administer his duties as
executor of her mother's estate.
Affirmed.
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