Testamentary capacity to sign Will detailed
IN THE MATTER OF
THE ESTATE OF
HELEN M. WESTE
___________________________________
Argued May 16, 2016 – Decided June 24, 2016
Before Judges Messano and Gooden Brown.
On appeal from the Superior Court of New Jersey, Chancery
Division, Probate Part, Middlesex County, Docket No. 228318.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
PER CURIAM
Joanne
Halkovich, niece of Helen M. Weste (Helen[1]),
appeals from the Chancery Division's August 8, 2014 order that: discharged
Halkovich as administratrix CTA[2]
of Helen's estate; ordered Halkovich to provide a full inventory and accounting
of the estate's assets; admitted Helen's 2002 last will and testament (the 2002
will) to probate; and appointed Helen's neighbor, John Brek, as executor under
the terms of the 2002 will. We discern
the following facts from the evidence adduced at the trial before Judge Frank
M. Ciuffani.
Helen
had no children and was divorced from her husband, John. On March 28, 1994, she executed a will (the
1994 will) that made three charitable bequests to two religious entities; left
her personal property to her niece Louise Ogletree; and bequeathed the
remainder of her estate in different percentages to a sister and eight nieces
and nephews, including Halkovich. Helen
named John, then a resident of Florida, as executor. Helen died on March 6, 2010, at the age of
eighty-two. Halkovich became
administratrix CTA because John and one of the alternate executrixes
pre-deceased Helen, and the other alternate executrix and family members renounced
the rights to administration. The 1994
will was admitted to probate on March 30, 2010.
In
1995, Helen left the apartment she had shared with John and moved back into her
family's home located on Hampden Street in Linden. Brek rented a portion of the house across the
street. Over the ensuing years, he
befriended Helen and would do odd jobs around her home and drive her to do her
errands.
Helen's
health began failing in 2001. Her nephew
testified that he and his wife often visited, but, on one occasion in July of
that year, Helen referred to him by his father's name, even though he had been
dead for nearly twenty years. Throughout
fall 2001, Halkovich and another niece, Carolyn Amoroso, visited, and Helen did
not recognize either of them. Amoroso
testified that she and her mother, Helen's sister, visited on March 17, 2002;
Helen recognized her sister, but not Amoroso.
Amoroso observed that Helen's home was not as neat as usual. However, Amoroso acknowledged at trial that
Helen was still coherent and stayed on topic during the conversation.
Concerned about
Helen's failing health, family members contacted John, who was attorney-in-fact
pursuant to a written power of attorney Helen had executed at the time of the
1994 will. John flew to New Jersey from
Florida, and, on April 5, 2002, after summoning police and emergency medical
services, had Helen admitted to Trinitas Hospital (Trinitas). In his psychiatric evaluation, Dr. Benjamin
Chu noted that Helen "appears confused, and disoriented . . . . Her insight and judgment are poor. She is
unable to take care of herself." Dr.
Chu diagnosed Helen with dementia, and assigned her a GAF score of 20, well
below normal functioning. Helen was
discharged from Trinitas, but never returned home. In June 2002, Halkovich coordinated her
aunt's admission to an assisted living community in New Jersey.
Michelle Chihadeh,
a certified dementia practitioner and assisted living administrator, testified
regarding the care she provided Helen at the facility. Helen was admitted to the special care
community as a result of her memory impairment, risk of wandering and need for
twenty-four-hours-a-day supervision. Following
John's death, on July 28, 2006, Halkovich was appointed Helen's guardian. Helen was transferred to another facility
where she remained until her death.
Victor Padlo, who
at the time of trial had been a practicing attorney in New Jersey for
thirty-nine years, testified that Helen called his office and scheduled an
appointment for February 15, 2002. Brek
testified that he drove Helen to Padlo's office, but he had no prior knowledge
of the reason for the meeting and no prior association with Padlo. During the meeting, Helen gave Padlo a
handwritten document that Padlo testified was essentially a "holographic
will."
As was his
practice, Padlo contemporaneously prepared a will information worksheet. Padlo testified that no one else was present
in his office when he interviewed Helen, and he had no doubt regarding her
testamentary capacity. Padlo testified
that he had never prepared a will for, or allowed it to be executed by, anyone
who lacked sufficient mental/testamentary capacity. He had, on other occasions, declined to
prepare the documents.
Padlo prepared the
will after the February 15, 2002 meeting and contacted Helen to make arrangements
for its execution. Helen returned on March 14, 2002, and executed the will. The same day, Padlo oversaw execution of
Helen's living will, that provided Brek with Helen's medical proxy. Only Padlo's secretary and another attorney
in his office were present during the execution of the documents.
The 2002 will made
a bequest to one of the religious institutions referred to in the 1994 will,
made a specific bequest to Helen's niece Louise Ogletree, bequeathed her personal
property to her niece Linda Ogletree, together with 10% of her residual estate and
bequeathed the home on Hampden Street and 90% of her residual estate to Brek. It also named Brek executor.
Helen gave Brek
copies of the testamentary and living wills
when they left Padlo's office in March 2002. Brek testified that Helen told him that he
should not let anyone put her in a nursing home and asked Brek to take care of
her. Nonetheless, Brek stood by silently
and actually witnessed Helen's involuntary removal from her home and subsequent
admission to Trinitas in April 2002. He
never advised anyone that he possessed a copy of the 2002 will during the
ensuing years, and, in February 2010, Brek moved to Pennsylvania. Brek became aware of Helen's death nine
months after the fact, when a neighbor notified him. For reasons unexplained, Brek never filed his
complaint seeking to probate the 2002 will until October 2011.[3]
Each side produced
expert witnesses who reached differing opinions regarding Helen's testamentary
capacity at the time of the 2002 will.
Dr. Peter Crain, a board certified forensic psychiatrist, testified that
Helen lacked two of the three criteria, specifically, that she did not
"understand the natural recipients" of her assets, or reasonably
appreciate "the extent of [those] assets." Dr. Eileen A. Kohutis, a psychologist,
testified as Brek's expert witness. She
opined that Helen possessed testamentary capacity when she executed the 2002
will.
In a comprehensive
written opinion, Judge Ciuffani reviewed the testimony and the case law
regarding testamentary capacity. He
concluded
the evidence does not clearly and convincingly establish
that Helen Weste, when she met with her attorney on February 13, 2002 [sic],
after preparing in her own handwriting a document setting forth her
testamentary intent, and on March 14, 2002[1], when she signed a [w]ill which
Mr. Padlo prepared based on her written instructions, lacked testamentary
capacity. The best evidence is from those who interacted with her during that
critical timeframe, Mr. Padlo, Mr. Brek and her two nieces who visited her
before and after she signed the [w]ill and left her to care for herself. If Helen Weste had the capacity to live alone
and care for herself, she had the capacity to make a [w]ill.
Judge Ciuffani noted that
"[t]he case law clearly states that the threshold for testamentary
capacity is very low, one need only possess a very low degree of mental
capacity to execute a will, even less than is needed to enter into a
contract."
The
judge noted that Helen was able to contact Padlo on two occasions, and prepared
"very specific" handwritten instructions for preparation of the 2002
will. He rejected the argument that Dr.
Kohutis's opinion was a "net opinion," observing that she had
reviewed the same documents as Dr. Crain.
Judge Ciuffani also noted that Dr. Crain conceded that a person with
"moderate dementia could have testamentary capacity," and that Dr.
Crain offered no opinion "on whether Helen Weste, if she wrote the written
instructions [on] her own, had testamentary capacity." The judge implicitly rejected Halkovich's
argument that "Brek told Helen what to write."
Lastly,
Judge Ciuffani rejected any claim that Brek asserted "undue
influence" upon Helen. He found no
evidence to support the contention, noting that Brek was not present when Helen
met with Padlo, Helen made dispositions to a charity and relatives in the 2002
will and did not bequeath all her assets to Brek, and Brek waited many months
after Helen's death to present the will.
The judge rejected the claim that misspellings and errors in the
handwritten instructions demonstrated that it was not prepared by Helen. He entered the order under review, and this
appeal followed.
Before
us, Halkovich argues that, for a variety of reasons, the judge erred in
concluding that Helen had the requisite testamentary capacity to make the 2002
will. She also contends that the 2002
will was the product of undue influence.
We have considered these arguments, in light of the record and
applicable legal standards. We affirm.
Our review of the
findings made by the judge in a non-jury trial is limited.
Final determinations made by the trial court sitting in a
non-jury case are subject to a limited and well-established scope of review: "we
do not disturb the factual findings and legal conclusions of the trial judge
unless we are convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as
to offend the interests of justice[.]"
[Seidman v.
Clifton Sav. Bank, S.L.A.,
205 N.J. 150, 169 (2011) (alteration in original) (quoting In re
Trust Created by Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J.
276, 284 (2008)).]
In particular, "[t]he findings
of the trial court on the issues of testamentary
capacity and undue influence, though not controlling, are entitled to
great weight since the trial court had the opportunity of seeing and hearing
the witnesses and forming an opinion as to the credibility of their
testimony." In re Will of Liebl,
260 N.J. Super. 519, 523 (App. Div. 1992) (alteration in original) (quoting
Gellert v. Livingston, 5 N.J. 65, 78 (1950)), certif. denied,
133 N.J. 432 (1993).
Challenging
Judge Ciuffani's determination that Helen possessed requisite testamentary
capacity when she executed the 2002 will, Halkovich argues: 1) the judge should
have applied "heightened scrutiny as a result of the suspicious
circumstances" surrounding the will; 2) the judge applied the incorrect
legal standard to assess Helen's competency; 3) the judge disregarded competent
evidence that Helen lacked the requisite capacity; and 4) the judge disregarded
Dr. Crain's "credible and competent testimony" in favor of Dr.
Kohutis's "net opinion." We
reject these claims.
"In
any attack upon the validity of a will, it is generally presumed that 'the
testator was of sound mind and competent when he executed the will.'" Haynes v. First Nat'l State Bank, 87 N.J.
163, 175-76 (1981) (quoting Gellert, supra, 5 N.J. at 71).
The gauge of testamentary capacity is whether the testator
can comprehend the property he is about to dispose of; the natural objects of
his bounty; the meaning of the business in which he is engaged; the relation of
each of the factors to the others, and the distribution that is made by the
will. Testamentary capacity is to be
tested at the date of the execution of the will. Furthermore, [a]s a general
principle, the law requires only a very low degree of mental capacity for one
executing a will. [T]he burden of
establishing a lack of testamentary capacity is upon the one who challenges its
existence [and] [t]hat burden must be sustained by clear and convincing
evidence. A testator's misconception of
the exact nature or value of his assets will not invalidate a will where there
is no evidence of incapacity. Even an actual mistake by a testator as to the
extent of his property does not show as a matter of law that he was wanting in
testamentary capacity.
[Liebl, supra, 260 N.J. Super. at
524-25 (citations omitted) (alterations in original).]
The
"suspicious circumstances" Halkovich alludes to are the conflicting
testimony regarding Helen's mental state in March 2002, the lack of any
"precipitating event" that would have caused her to change the
disposition of her assets from the earlier will, and errors and misspellings
contained in the handwritten list she provided to Padlo. The very old cases cited by Halkovich do not
alter the burden of proof or change the legal standards relating to
testamentary capacity. More importantly,
Judge Ciuffani evaluated all of the evidence regarding Helen's mental state as
of March 14, 2002, and he discounted the importance of any errors or
misspellings in the handwritten list.
Contrary to Halkovich's contentions, the 2002 will kept some of the
dispositions made by the earlier will and rejected others. In any event, "[i]t is well settled in
this State that every citizen of full age and sound mind has the right to make
such disposition of property by will or deed as he or she in the exercise of
individual judgment may deem fit." Casternovia v. Casternovia, 82 N.J.
Super. 251, 257 (App. Div. 1964).
Similarly,
the contention that Judge Ciuffani applied the wrong legal standard is
unpersuasive. Halkovich cites the
judge's statement that at the time of executing the 2002 will, Helen was able
to care for herself and argues "this [is] not the test for
testamentary capacity," and the finding was contrary to the weight of the
evidence. However, a fair reading of the
judge's entire written opinion makes clear that the judge did not misapprehend
the standard for assessing testamentary capacity, nor did he make a factual
finding that was not supported by the evidence.
The reality is that Helen made the appointment to see Padlo, she was
prepared to make a new will and Padlo, who had extensive experience, did not
question her capacity. Moreover, when
her relatives involuntarily removed her from her home, Helen was in fact caring
for herself without assistance.
Halkovich's
final two arguments regarding Helen's testamentary capacity lack sufficient
merit to warrant extensive discussion. R.
2:11-3(e)(1)(E). Applying our standard
of review, we cannot conclude that Judge Ciuffani's factual findings and
assessment of the credibility of the expert testimony were "'so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins.
Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N.
Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied,
40 N.J. 221 (1963)). We also
agree with Judge Ciuffani that Dr. Kohutis's opinions were not inadmissible net
opinions.
Halkovich
also contends that Judge Ciuffani erred in concluding the 2002 will was not the
product of undue influence. We again
must disagree.
A will which on
its face appears to be validly executed, may be set aside if it is tainted by
"undue influence." Haynes, supra, 87 N.J. at
176. The Court has defined undue
influence as
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.
[In re Estate of Stockdale, 196 N.J. 275,
302-03 (2008).]
"It denotes conduct that
causes the testator to accept the 'domination and influence of another' rather
than follow his or her own wishes." Id. at 303 (quoting In re
Neuman, 133 N.J. Eg. 532, 534 (E.& A. 1943)). "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." Ibid. (quoting In re Rittenhouse's
Will, 19 N.J. 376, 378-79 (1955)).
Here,
the judge rejected Halkovich's wholly-circumstantial suppositions as evidence
of Brek's influence over Helen. We see
no basis to disturb those conclusions given the lack of any evidence to the
contrary.
Affirmed.
[1]
We refer to Helen Weste, and her ex-husband John, by their first names to avoid
confusion. We mean no disrespect by this
informality.
[3]
Rule 4:85-1 provides:
If a will has been probated by the Surrogate's Court or
letters testamentary or of administration, guardianship or trusteeship have
been issued, any person aggrieved by that action may, upon the filing of a
complaint setting forth the basis for the relief sought, obtain an order
requiring the personal representative, guardian or trustee to show cause why
the probate should not be set aside or modified or the grant of letters of
appointment vacated, provided, however, the complaint is filed within four
months after probate or of the grant of letters of appointment, as the case may
be, or if the aggrieved person resided outside this State at the time of the
grant of probate or grant of letters, within six months thereafter.
The estate never sought to dismiss Brek's complaint as
untimely and the issue was not addressed by Judge Ciuffani.
