Opinion
DOCKET NO. A-0304-13T2
09-04-2014
IN THE MATTER OF THE ESTATE OF JEANETTE VENDOLA.
Lee Levitt, LLC, attorneys for appellants Lorri Vendola and Keith Harp (Lee M. Levitt and Stacy L. Dwyer, on the brief). Daniel Jurkovic, attorney for respondents Pearl Diamante, Stella Bello, Adele Diamante, Michael Diamante, James Muir, Lisa Petrino, Pamela D'Alessio, Karen LoPresti, and Scott Muir.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-119-13. Lee Levitt, LLC, attorneys for appellants Lorri Vendola and Keith Harp (Lee M. Levitt and Stacy L. Dwyer, on the brief). Daniel Jurkovic, attorney for respondents Pearl Diamante, Stella Bello, Adele Diamante, Michael Diamante, James Muir, Lisa Petrino, Pamela D'Alessio, Karen LoPresti, and Scott Muir. PER CURIAM
Plaintiffs Lorri Vendola and Keith Harp appeal the Probate Part's September 13, 2013 order dismissing their complaint seeking to admit an unsigned document to probate as the will of Jeanette Vendola. We affirm.
Because several of the persons mentioned in this opinion share the same last name, we refer to them by their first names for the sake of clarity.
I.
We discern the following facts and procedural history from the record on appeal. Because the case was decided on a motion for summary judgment, we outline the facts in the manner most favorable to plaintiffs, Ramos v. Flowers, 429 N.J. Super. 13, 16 (App. Div. 2012), but note that there are many contested issues of material fact that would preclude summary judgment in favor of plaintiffs, even if we agreed with them on the issue of the law.
Lorri is the daughter of Jeanette's late husband, Frank Vendola, from a prior marriage. Frank and Jeanette were married in 1978. According to Lorri, she and Jeanette developed a close, mother-daughter-like relationship. After Lorri married Keith, they provided assistance to Frank and Jeanette as they aged. Eventually, Frank and Jeanette asked Lorri and Keith to manage their financial affairs.
The relationship continued after Frank's death. Frank died intestate and there was discussion of Jeanette signing a renunciation of her right to intestate succession in favor of Lorri. Jeanette told Lorri on several occasions that she wanted to leave everything to her. On February 21, 2011, Jeanette met at her home with Frank's attorney, Gabriel Ambrosio, and asked him to prepare a will leaving everything to Lorri, with Keith as the successor heir.
Ambrosio prepared such a will and had an appointment with Jeanette to sign the will on March 7. He did not send a copy to Jeanette for her review prior to their meeting. Jeanette was hospitalized on March 7 before meeting with Ambrosio. She died on March 18 without having seen, read, or signed the will.
Lorri and Keith filed their complaint seeking to have the unsigned will admitted into probate in March 2013. Various defendants, who would share in Jeanette's estate were she to have died intestate, answered and counterclaimed. In July, Lorri and Keith filed a motion for summary judgment and the defendants filed a cross-motion seeking the same relief.
The Probate judge heard oral argument on August 16. Based on the facts that Jeanette never saw the will or had its contents read to her, the judge concluded that it could not be admitted to probate. Consequently, he denied the motion for summary judgment filed by plaintiffs and granted the defendants' cross-motion. This appeal followed.
II.
On appeal, Lorri and Keith contend that the motion judge erred in holding that the will drafted by Ambrosio could not be admitted to probate because Jeanette had never seen or read it. Instead, they contend that the judge should have granted summary judgment in their favor.
We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, L.L.C., 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a [finder of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
Ordinarily, a will must comply with the following requirements in N.J.S.A. 3B:3-2:
a. Except as provided in subsection b. and in N.J.S. 3B:3-3, a will shall be:
(1) in writing;
(2) signed by the testator or in the testator's name by some other individual in the testator's
conscious presence and at the testator's direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
b. A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
c. Intent that the document constitutes the testator's will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator's handwriting.
Acknowledging that the document was not signed or handwritten by Jeanette, Lorri and Keith argue that it should have been admitted to probate under the provisions of N.J.S.A. 3B:3-3, which provides, in pertinent part:
Although a document or writing added upon a document was not executed in compliance with N.J.S. 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S. 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's will . . . .The essence of the motion judge's decision was that a document that Jeanette had never seen, read, or even had read to her could not be admitted to probate under the terms of that statute.
In In re Probate of Alleged Will & Codicil of Macool, 416 N.J. Super. 298, 310 (App. Div. 2010), we held that
for a writing to be admitted into probate as a will under N.J.S.A. 3B:3-3, the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it. Absent either one of these two elements, a trier of fact can only speculate as to whether the proposed writing accurately reflects the decedent's final testamentary wishes.We also held that it was not necessary for the document to have been signed by the decedent. Id. at 311.
We reiterated the Macool holding in In re Estate of Erlich, 427 N.J. Super. 64, 71-72 (App. Div.), certif. denied, 213 N.J. 64 (2013). Recognizing that the provisions of N.J.S.A. 3B:3-3 are remedial in nature and entitled to a liberal interpretation, we nevertheless observed that "the greater the departure from Section 2's formal requirement, the more difficult it will be to satisfy Section 3's mandate that the instrument reflect the testator's final testamentary intent." Erlich, supra, 427 N.J. Super. at 72-73. Consequently, we again emphasized that
the burden of proving by clear and convincing evidence that the document was in fact reviewed by the testator, expresses his
or her testamentary intent, and was thereafter assented to by the testator. In other words, in dispensing with technical conformity, Section 3 imposes evidential standards and safeguards appropriate to satisfy the fundamental mandate that the disputed instrument correctly expresses the testator's intent.
[Id. at 74.]
We agree with the motion judge that, even giving Lorri and Keith the benefit of all favorable inferences, there is an insufficient basis for admission of the draft will to probate under N.J.S.A. 3B:3-3. Plaintiffs are unable to satisfy the requirement of Macool and Erlich that there be proof by clear and convincing evidence that Jeanette reviewed the document and indicated her assent. She clearly did neither. To admit the document at issue into probate would, as we warned in Macool, be to engage in "speculat[ion] as to whether the proposed writing accurately reflects the decedent's final testamentary wishes." Macool, supra, 416 N.J. Super. at 310 (emphasis added). Consequently, we affirm the order on appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION