NOT FOR PUBLICATION
WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION, PROBATE PART
DOCKET NO. ESX-C-192-10
Lilly Buie and Antwan Moses
The Estate of Isom Buie, et al.
Decided: January 17, 2012
By: Walter Koprowski, Jr., J.S.C.
Glen J. Vida, Esq.
Attorney for Plaintiffs
Lilly Buie and Antwan Moses
Robert D. Kuttner, Esq.
Attorney for Defendants
Estate of Isom Buie, Tyrone Buie as the Executor of the Estate of Tyrone Buie, Tyrone Buie, individually, Edith Huntley, Charles Buie, and Castella Buie
Decedent Isom Buie died on January 9, 1996. He had six children: Plaintiff Antwan Moses (Isom Buie and Lilly Buie’s only child), Defendants Tyrone Buie, Edith Huntley (a.k.a. Edith Cherry), Charles Buie, Castella Buie, and Itheatha Scott. He executed a valid last will and testament on March 12, 1988, which left his property located at 731⁄2 Stone Street, Newark, N.J., to be divided among his children equally. Decedent also named his son Tyrone Buie as Executor of the Estate. Upon Isom Buie’s death, his wife Lilly Buie (a.k.a. Lillie Buie) received non-probate assets in the amount of approximately $95,000.00, which consisted of the proceeds of two joint bank accounts, as well as a life insurance policy in the amount of $10,000, which she says was used for funeral expenses. One week after the Decedent’s death, Lilly Buie left the house in question and moved back to her home state of South Carolina with her son Antwan Moses. Since that time, it appears that the other named heirs, primarily Edith Cherry, maintained the house, paid debts and fees owed on the house, and made repairs and capital improvements. The other children lived in the house as well, with some paying rent and others living rent-free.
Plaintiffs, Lilly Buie and Antwan Moses, filed a complaint on April 22, 2010, in which Ms. Buie demands her intestate share under N.J.S.A. 3B:5-3 as an omitted spouse under N.J.S.A. 3B:5-15 or an elective 2 share of her husband’s estate pursuant to N.J.S.A. 3B:8-1, and Mr. Moses seeks his 1/6th share of the remainder. Both seek the partition of the real property located at 731⁄2 Stone Street, Newark, N.J. and for an accounting of the assets of the Estate. The issue is whether Ms. Buie’s claim is time-barred.
Ms. Buie appeared and testified before this court. The parties have stipulated to the admission of the Essex County Surrogate file in the Estate of Isom Buie (14,700-M), and the file of James H. Wolfe, Esq., the attorney who represented Tyrone Buie, the executor of the Estate.
Ms. Buie is a sixty-four year old woman with an eighth-grade education who worked as a babysitter and in plastic manufacturing prior to her marriage to Isom Buie in 1990. She is the decedent’s third wife. Their son, Antwan Moses, was born in 1985. There are five other children from his two previous marriages. Ms. Buie asserts that she has a limited understanding of legal matters. She has a very limited ability to read and I did not find her to be a very effective communicator.
At the time of his death, Isom and Lilly Buie lived at 731⁄2 Stone Street in Newark, N.J. This property was solely owned by the Decedent. They had a joint bank account with $70,000.00 and another account held in trust for Mr. Moses, which contained $25,000.00. There was also a life insurance policy in the amount of $10,000.00, which Ms. Buie says was used for the Decedent’s funeral expenses. These non-probate assets became the property of Ms. Buie upon the Decedent’s passing.
While the Decedent was alive, Ms. Buie did not have a good relationship with her step-children, as they were concerned that she would take their father’s money. She recalls that his son, Tyrone Buie, spoke to her after the Decedent’s death and asked for the money from the bank accounts to pay estate bills. Ms. Buie refused this request. One week after the Decedent’s death, she moved to South Carolina with Mr. Moses, based on a dream she had.
Lilly Buie claims to have learned about the will only after hiring Glen Vida in 2009, and now seeks a share of the real property. Ms. Buie claims she had no representation prior to her hiring of Mr. Vida.
Ms. Buie allegedly was never advised of the will but claims she was led to believe that she was still a legal owner of the realty in question by the Defendants. Although she claims no knowledge of a will, Ms. Buie never took any steps to be appointed as Administratrix of the Estate. Ms. Buie never contributed to the upkeep of the house when asked to do so by the Defendants.
Ms. Buie argues that she has an interest in the house based on her alleged right to her intestate share pursuant to N.J.S.A. § 3B:5-15, which governs entitlements of spouses in cases in which the decedent made a Will prior to the marriage. That statute reads as follows:
a. If a testator's surviving spouse married the testator after the testator executed the
testator's will, or if a testator's domestic partner formed a domestic partnership with
the testator after the testator executed the testator's will, the surviving spouse or
domestic partner is entitled to receive, as an intestate share, no less than the value of
the share of the estate the surviving spouse or domestic partner would have received if
the testator had died intestate, unless:
(1) it appears from the will or other evidence that the will was made in contemplation
of the testator's marriage to the surviving spouse or in contemplation of the testator's 3 formation of a domestic partnership with the domestic partner;
(2) the will expresses the intention that it is to be effective notwithstanding any
subsequent marriage or domestic partnership; or
(3) the testator provided for the spouse or domestic partner by transfer outside the will
and the intent that the transfer be in lieu of a testamentary provision is shown by the
testator's statements or is reasonably inferred from the amount of the transfer or other
b. In satisfying the share provided by this section, devises made by the will to the
testator's surviving spouse or domestic partner, if any, are applied first, and other
devises shall abate ratably and in proportion to their respective interests therein.
As the Decedent died prior to February 27, 2005 and Ms. Buie had a child from her marriage with the Decedent, her intestate share would be $50,000.00 plus 50% of the balance.1 The Defendants claim that Ms. Buie had notice of the fact that she had an interest in the estate and her claim is barred by the doctrine of laches.
Laches arises from “‘the neglect for an unreasonable and unexplained length of time . . . to do what in law should have been done.’” Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 151 (1982) (quoting Atlantic City v. Civil Serv. Comm’n, 3 N.J. Super. 57, 60 (App. Div. 1949)). The doctrine bars relief when the delaying party had ample opportunity to bring a claim, and the party invoking the doctrine was acting in good faith in believing that the delaying party had given up on its claim. Knorr v. Smeal, 178 N.J. 169, 181 (2003); Lavin, supra, 90 N.J. at 152. The period of time during which laches can be raised as an equitable defense is flexible, not fixed. Lavin, 90 N.J. at 151.
When determining whether the doctrine of laches should be invoked, the court considers: (1) the length of the delay, (2) the reasons for the delay, and (3) how the circumstances of the parties have changed over the course of the delay. Knorr, supra, 178 N.J. at 181. As stated in Lavin:
The length of the delay alone or in conjunction with the other elements may result in laches. It is because the central issue is whether it is inequitable to permit the claim to be enforced, that generally the change in conditions or relations of the parties coupled with the passage of time becomes the primary determinant. That is why some courts have stated that the mere lapse of time is insufficient, though, as indicated above, that is an overstatement of the principle. Inequity, more often than not, will turn on whether a party has been misled to his harm by the delay.” Id. at 152-53.
Here, Ms. Buie’s omitted spouse claim is barred by the doctrine of laches. First, there has been a substantial delay. Isom Buie died on January 9, 1996. Ms. Buie filed this complaint on April 22, 2010. This extended delay in seeking her intestate share of the Estate is unreasonable. She was aware of her husband’s interest property in Newark, N.J., because she lived there. She also knew that she had some obligatio
1 Under the version of N.J.S.A. 3B:3-3(b) prior to the February 27, 2005 amendments, a surviving spouse is entitled to $50,000, plus 50% of the balance if there are issue from the marriage. 4
because she was a co-signer on the mortgage on the house. However, a week after Decedent’s death, Ms. Buie took her son Mr. Moses back to her hometown in South Carolina. She voluntarily removed herself from the house and Isom Buie’s children. She did not communicate with Tyrone Buie concerning her interest in the estate and his need to administer the estate for fourteen years.
Second, Ms. Buie was the cause of the delay in bringing this matter. There are a series of relevant letters that support the conclusion that it was Ms. Buie who refused to cooperate in the administration of this simple estate, and address Ms. Buie’s knowledge about the estate of Isom Buie. On October 30, 1996, Tyrone Buie sent a letter to Ms. Buie informing her there was a will, that she was a co-signer of contracts, including a mortgage on the on the house in Newark, and that she was still obligated to make payments. This correspondence also sought to inform Ms. Buie that Mr. Moses was given a joint inheritance in the real estate in Newark. It was sent by certified mail and returned unclaimed on November 22, 1996. On November 26, 1996, Tyrone Buie sent a follow-up letter to Ms. Buie by regular mail asking her to contact him so they can resolve a few outstanding issues related to the Estate of Isom. This letter also claims that notice was given to her attorney-at-law, Mr. Chipperson.
In her testimony, Ms. Buie acknowledged receipt of the October 30, 1996 letter that clearly references a will and notes that there was a mortgage which she signed and acknowledges the need to resolve her spousal interest in the estate. She contends that she never hired a lawyer and never responded to the letter in any fashion.
Mr. Wolfe, the attorney for Tyrone Buie, directed correspondence dated January 30, 1996 to an attorney, Harold Chipperson, concerning his representation of Mr. Buie and Ms. Buie, after her husband’s death. Tyrone Buie wrote to Mr. Chipperson on November 26, 1996, regarding Ms. Buie’s interests concerning her husband’s estate. Ms. Buie denies Mr. Chipperson’s representation of her interests and the court cannot find that he acted on her behalf based on this record.
I find that Ms. Buie is not a credible witness. Although she argues that she lacks sophistication in legal matters, she was able to promptly take control of the joint bank accounts and obtain the insurance policy proceeds – one week after the Decedent’s death and Tyrone Buie’s request for financial assistance to the Estate. In her testimony, Ms. Buie indicated that she did not know about the will. She claims that after the Decedent’s death, she did not know who owned the house. She did not know that an “heir” house could be sold. However, the October 30, 1996 letter clearly references the will, her inheritance, the mortgage interest in the real property and her son’s interest in the real property. Thus, she was aware of the pending Estate issues.
Even if her testimony regarding what transpired in 1996 is accepted, the legal file of Mr. Wolfe clearly shows that Ms. Buie was notified regarding Tyrone Buie’s application to be discharged as executor in October of 2001. These pleadings, which were served on her via certified mail, return receipt requested, show that Ms. Buie was on notice that there were proceedings related to the Estate, of which she had some interest. Yet, Ms. Buie took no action after receipt of Tyrone Buie’s Order to Show Cause, which was filed November 9, 2001.
I do not find that Ms. Buie’s lack of formal education beyond the eighth-grade and her limited ability to read prohibited her from understanding that she had some interest in the real property and of the pending Estate issues. Again, despite these limitations, Ms. Buie understood that she had an interest in the two bank 5 accounts and the insurance policy and took control of them as such within a week of the Decedent’s death. Further, even without much understanding of legal matters, she nonetheless was at least aware that there were legal proceedings in New Jersey involving her former step-son, Tyrone Buie, and the Estate of her deceased husband in 2001, and failed to take any action whatsoever.
The proof also supports the third element of laches. The defendants have been prejudiced as a result of Lilly Buie’s fourteen-year delay in bringing this action. Lilly Buie received $95,000.00 in cash as a result of Isom Buie’s death. The Defendants have carried and maintained the family home for over fourteen years without any contribution on her part. The delay has resulted in Defendants having no ability to investigate other assets taken, received or obtained by Lilly Buie or to argue that it was the testator’s intent was to provide for her outside the will. See N.J.S.A. § 3B:5-15(a)(1) – (3).
Additionally, Ms. Buie’s claim against the property under N.J.S.A. 3B:8-1, et. seq., the Elective Share Statute, is time-barred. Pursuant to N.J.S.A. 3B:8-12, “the surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent's estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.”
Ms. Buie has not shown that there is “good cause” to extend the time from six months to over fourteen years for Ms. Buie to elect to take her elective share. Despite Ms. Buie’s assertions that she was unaware that she had any interest in the property, she was notified of the will, her inheritance, the mortgage interest in the real property and her son’s interest in the real property by letter dated October 30, 1996. Thus, she has been aware that there were issues that required her attention related to the Estate since that date, and failed to take action until filing the present action. Thus, the court declines to extend the time for election.
Ms. Buie’s complaint seeking partition based on her intestate share under N.J.S.A. 3B:5-3 as an omitted spouse under N.J.S.A. 3B:5-15 and her elective share of her husband’s estate pursuant to N.J.S.A. 3B:8-1, be and the same, is hereby dismissed with prejudice and without costs. This matter is set down for a case management conference to address the disposition of Mr. Moses’ partition claim.