Opinion
DOCKET NO. A-2349-10T2
08-14-2012
IN THE MATTER OF THE PROBATE OF THE WILL OF DARRYL FIELDS, DECEASED.
Angelo S. Ferrante, attorney for appellant, Kristina Mirando. Brock D. Russell, attorney for respondent, Lisa Perkins.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Cape May County, Docket No. P-107-10.
Angelo S. Ferrante, attorney for appellant, Kristina Mirando.
Brock D. Russell, attorney for respondent, Lisa Perkins. PER CURIAM
Appellant Kristina Mirando appeals from the January 5, 2011 order admitting the will of her putative father, Darryl A. Fields, to probate, directing that letters testamentary be issued to respondent Lisa Perkins, and dismissing her counterclaim. The trial court determined that Mirando lacked standing to contest the will because she could not prove that Fields was her father. We conclude that Mirando submitted sufficient evidence of paternity to establish standing to dispute the probate of the will. Accordingly, we reverse and remand for further proceedings.
I.
On September 27, 2010, Darryl Fields executed a pre-printed, form will, in which he left his entire estate to his landlords, Lisa Perkins and her husband, with whom he lived, and appointed Lisa Perkins as executrix. Five weeks and three days later, on November 4, 2010, Fields, then age forty-eight, died. On November 5, 2010, Mirando filed a caveat to any "will and testament of Darryl Andrew Fields . . . ." Mirando asserted that she was the "daughter of said decedent."
Lisa Perkins was identified as the "plaintiff" in the proceedings before the trial court. Accordingly, we will refer to her as "Perkins" for ease of reference.
Perkins filed a verified complaint for probate and an order to show cause. The order to show cause directed Mirando to appear on January 5, 2011, and show cause why the court should not admit Fields' will to Probate and issue letters testamentary to Perkins. Mirando answered the complaint and filed a motion for leave to file a counterclaim; Perkins answered the counterclaim; and the matters came before the court on January 5, 2011.
The record before us suggests that the motion was never decided. Instead, Perkins filed an answer to the counterclaim, and the court disposed of it as if it had been filed. Accordingly, we address the issues raised by the counterclaim in that context.
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On the return date of the order to show cause, Perkins argued that Fields' will was valid, and that until Mirando established a parent-child relationship, she had no standing to contest the will's validity. Mirando responded that she had filed with her pleadings three documents that established she was Fields' daughter; her birth certificate, her mother's affidavit of paternity, and the certificate she signed authorizing the cremation of Fields' last remains, which could be signed only by a descendant of Fields. She argued that since Fields was an alcoholic, she had to "explore[] as to the incident surrounding the signing of [the] will[,]" including the relationship of the witnesses to the beneficiaries, and whether Fields had testamentary capacity or was subject to undue influence.
After listening to the attorneys, the court suggested that it take some testimony from Perkins and Mirando, and asked counsel if they objected to the court questioning their clients. Counsel had no objection, so the court questioned the parties.
Perkins testified that she had been friends with Fields for about twenty years, and he had lived with her and her husband for about five years. Fields had come to live with them after he lost his job and his apartment went into foreclosure. He had no money to go anywhere. Perkins had not met Mirando until Mirando showed up at the Perkins' home the day after Field's died.
Perkins further testified that Fields had referred to Mirando once, approximately one-and-one-half years before he died. She had left a message on his telephone answering machine that she thought she was his daughter, that she was going to be married in a few months, and that she wanted to invite him to the wedding. She asked that he return her call. According to Perkins, Fields never received an invitation to the wedding, and he had no contact with Mirando again.
Fields told her that when he was eighteen years old, Mirando's mother was with a lot of men in the neighborhood, so the father could have been any one of them. In the twenty years Perkins had known Fields, he never spoke with Mirando or had any contact with her. Perkins had visited Fields' mother and father; his mother "would have loved to have had a granddaughter, and have had contact with her from the day she was born." Perkins had been to their home for dinner many times, but had never heard them discuss a granddaughter or a grandchild.
According to Perkins, shortly before signing the will at issue, Fields had probated his father's will and received an inheritance. He purchased a home next door to her, and decided to take a trip to North Carolina with her husband. Although he purchased the home next door, he wanted to continue to live with Perkins and her husband.
Fields was diagnosed with cirrhosis of the liver about a year before he died. When he returned from the North Carolina trip, his stomach was swollen. The year before, when he was diagnosed, he had spent twelve days in the hospital. Upon his discharge, he was taking his medications and was getting better. Although he went without a drink for four or five months, he relapsed, and started drinking again "but he did a pretty good job of hiding it. It was usually later in the evening."
Fields signed the will in a storage unit where there was a notary. Perkins' daughter-in-law, Shelby Perkins, and her nephew, William Holco, signed the will as witnesses. Perkins explained that Fields did not go to a lawyer to have the will drawn up because his father's lawyer had been unresponsive when Fields contacted him to probate his father's will. Perkins' husband and Fields "got the form for [the] will . . . on the internet."
The court next questioned Mirando, who said she was eleven years old when she became aware that Fields was her father. Her contact with him was "on and off because of his alcoholism[.]" She chose not to be a part of his life, because he preferred alcohol and drugs to her company. He didn't want her to be part of his life. Mirando was "pretty sure he was an alcoholic, drug-addict, and didn't know what he was doing." She had no father-daughter relationship with Fields; however, he had called her about her wedding and wanted her to invite him. She had called him numerous times, and on one occasion, she called him after suffering a collapsed lung that the doctor said could be caused by a hereditary condition. Mirando never saw Fields. Her sole contact was over the phone. She only saw his parents.
Mirando learned from mutual friends of her mother and father that her father had died. When the court asked her what information she had about Fields' mental state around the time he signed the will, Mirando responded that Fields had been an alcoholic for years, had never grown up, and had never stopped the drugs, the drinking, and the partying. She did not "think that he could be of sound mind ever."
Following additional argument from counsel, the court discharged the caveat; struck Mirando's answer and affirmative defenses, and dismissed her counterclaim; admitted the will to probate; and appointed Perkins as executrix. The court dismissed as legally unsupportable Mirando's "theories" that the will was a holographic will, and that if Fields did not explicitly disinherit Mirando in his will, she had a claim against the estate. Based on Mirando's testimony that "she never once in her life met the decedent[,]" the court rejected her theory that Fields may have lacked testamentary capacity when he signed the will. The court did not address Mirando's "theory" of undue influence.
The court stated that "the whole standing thing is, of course, key." Acknowledging that if Mirando had standing as Fields' daughter then "she probably would have . . . standing to contest the will[,]" the court concluded that "[t]he whole question of whether or not Ms. Mirand[o] is, in fact, a daughter of the decedent is one which presumably should be the subject of its own independent action in this or some other court. But it seems to me that's a question that's well beyond the scope of this action[.]" The court noted that, in the will, the decedent denied having any children; and that Mirando and Fields "were never even in each other's presence."
The court determined that Mirando's uncertified birth certificate from a foreign state and the affidavit from her mother were "not much more than interesting pieces of information . . . that may . . . serve as a basis for beginning a paternity action in some court." The court concluded that "in the face of the testator's effective denial of paternity in . . . his will, . . . the answer regarding standing is that Ms. Mirand[o] has not established that she has it."
The court issued a confirming order from which Mirando appealed. Perkins objected to the appeal as interlocutory, and the matter was remanded to the trial court for a determination of counsel fees, after which this appeal followed. We stayed the order admitting Fields' will to probate pending the outcome of this appeal.
II.
Mirando first contends that the trial court erred when it determined that she did not have standing to contest the administration of Fields' estate. Perkins counters that Mirando's counterclaim did not assert a cause of action for paternity and that her proofs were inadequate as a matter of law to establish paternity. We conclude that Mirando has standing to contest the admission of the will to probate and is entitled to a hearing to establish paternity.
Our scope of review of a trial court's factual determinations is limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). On the other hand, appellate "review of a trial judge's legal conclusions is de novo." Walid v. Yolanda for Irene Couture, Inc., 425 N.J. Super. 171, 179 (App. Div. 2012).
Initially, we reject Perkins' argument that Mirando's claim should be rejected because her counterclaim did not state a cause of action or include a prayer for an adjudication of paternity. Mirando asserted in her caveat that Fields was her father. In paragraph one of her counterclaim she stated that she "is the daughter of decedent, Darryl Fields." Perkins, in her answer to the counterclaim, denied that Mirando was Fields' daughter. Those pleadings framed the paternity issue. More significantly, Mirando had filed with her proposed counterclaim her birth certificate naming Darryl Andrew Fields as her father, and her mother's certification stating that: Fields was Mirando's father; she conceived Mirando after having sexual intercourse with Fields in February 1981; she had not had sex with any other man either thirty days before or thirty days after her sexual relationship with Fields; and Fields had acknowledged to five individuals, identified in the affidavit, that he was Mirando's father.
The issue before the trial court on the return date of the order to show cause was Mirando's standing to challenge the administration of Fields' estate, not her entitlement to intestate succession. "Filing a caveat is one method of indicating that a dispute over administration does exist." In re Estate of Aich, 164 N.J. Super. 179, 182 (Ch. Div. 1978). "As a general proposition a caveator must demonstrate that he [or she] would be aggrieved by the judgment of probate." In re Estate of Margow, 77 N.J. 316, 323 (1978). Mirando, as putative next-of-kin, would be aggrieved by the judgment of probate because she stood to inherit the entire estate if Fields' will were invalidated. See N.J.S.A. 3B:5-4(a) (providing that the intestate estate of a decedent who is not survived by a spouse or domestic partner passes, in the first instance, to the decedent's descendents). Cf. In re Estate of Walsh, 131 N.J. Eq. 376, 377-78 (Prerog Ct. 1942) (suggesting that creditors and next-of-kin have standing to challenge an order granting letters of administration to an administrator).
Having asserted in her pleadings that she was Fields' daughter, and having presented prima facie evidence thereof, Mirando had standing to file the caveat and contest the issuance of letters of administration to Perkins.
Perkins argues that Mirando failed to establish that Fields was her father. Perkins analyzes Mirando's "proofs" under the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59. That argument is unpersuasive because the court provided Mirando with no advance notice that it would conduct a paternity hearing, conducted no paternity hearing, and afforded the parties no opportunity to present evidence. That the proceeding was not a paternity hearing was evident from the court's inquiry of counsel, at the inception of the proceeding, as to where they "see things at this point . . . ." Tellingly, in its decision, the court explicitly stated that the issue of paternity "is one which presumably should be the subject of its own independent action in this or some other court."
We also reject Perkins' argument that Mirando failed to prove her theories concerning the validity of the will. She was provided no hearing and no opportunity to adduce evidence as to those issues. And even if Mirando were required, without discovery, to make some threshold showing that her theories were bona fide, the court never addressed her claim of undue influence. Nevertheless, the court's questioning of Mirando and Perkins resulted in testimony that when Fields signed the will, he was an alcoholic suffering from cirrhosis of the liver; had moved in with Perkins and her husband when he had no money; had lived with them for five years; and apparently intended to continue to live with them even though he had purchased the house next door. Perkins' husband helped him obtain the will from the internet, and her daughter-in-law and nephew witnessed it. Considering those circumstances, Mirando was at least entitled to take discovery on the issue of undue influence. See In re Estate of Stockdale, 196 N.J. 275, 303 (2008) (explaining that "if the will benefits one who stood in a confidential relationship to the testator and if there are additional 'suspicious' circumstances, the burden [concerning undue influence] shifts to the party who stood in that relationship to the testator.").
In summary, Mirando established her standing to object to the grant of letters of administration. She was entitled to a hearing on the issue of paternity, an issue that was framed by the pleadings and required to be decided in the context of the will contest. The trial court erroneously decided that Mirando did not have standing.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION