IN THE MATTER OF THE TRUST OF DR. MERRITT EVAN LONDON (P-283-13, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-4693-14T4
A-4746-14T4

IN THE MATTER OF THE
TRUST OF DR. MERRITT
EVAN LONDON, M.D.,
DECEASED.
——————————————————————————

Argued June 8, 2017 – Decided September 6, 2017

Before Judges Hoffman, O'Connor and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
P-283-13/S#236312.

Kenneth L. Moskowitz argued the cause for
appellants Mark London and Patricia London
Thieffry in A-4693-14 (Brown Moskowitz &
Kallen, PC, attorneys; Mr. Moskowitz and
Steven R. Rowland, of counsel and on the
briefs).

Derek M. Cassidy argued the cause for
appellant Thomas Arnold in A-4746-14 (The
Cassidy Law Firm, attorneys; Mr. Cassidy and
Harold J. Cassidy, on the briefs).

James M. Nardelli argued the cause for
respondents The Salvation Army, NYU Langone
Medical Center, Simon Wiesenthal Center,
Jewish Family and Children's Service of
Greater Monmouth County, and B'nai B'rith
Foundation of the United States (Parsons &
Nardelli, attorneys; Mr. Nardelli, on the
briefs).
 Marc Krefetz, Deputy Attorney General, argued
the cause for respondent Attorney General of
New Jersey, in the position of parens patriae
(Christopher S. Porrino, Attorney General,
attorney, joins in the brief of respondents).

PER CURIAM

This consolidated appeal concerns the distribution of the

estate of Dr. Evan Merritt London (decedent). The appellants are

plaintiffs Patricia London Thieffrey (Patti) and Mark London

(Mark), decedent's niece and nephew, and Thomas Arnold (Thomas),

decedent's long-time friend. These parties appeal from separate

summary judgment orders of the Chancery Division, Probate Part,

dismissing plaintiffs' verified complaint and Thomas's

counterclaim. Having thoroughly reviewed the record and

applicable law, we affirm.

We begin by reciting the relevant procedural history. On

August 29, 2013, plaintiffs filed a two-count verified complaint,

seeking in count one a judgment declaring that an unsigned trust

prepared in May 2013 "is valid and enforceable," and "supersedes"

a trust decedent signed in 2012. In count two, plaintiffs sought

a declaration that Thomas was entitled to one of decedent's two

IRA accounts, and that they were entitled to the second.

The New Jersey Attorney General filed an answer and

affirmative defenses to plaintiffs' complaint, on behalf of

various charitable organizations that would be impacted by the

2 A-4693-14T4
unsigned 2013 trust. Shortly thereafter, respondents NYU Langone

Medical Center (NYU Langone), Simon Wiesenthal Center, the

Salvation Army, B'nai B'rith Foundation of the United States (B'nai

B'rith), and Jewish Family and Children's Service of Greater

Monmouth County (Jewish Service) (collectively, charitable

organizations), filed an answer and affirmative defenses.

Respondent Wells Fargo Bank, N.A. (Wells Fargo Bank), as trustee

of decedent's 2012 trust, also filed an answer and affirmative

defenses. Thomas filed an answer, counterclaim, and cross-claim,

seeking a declaration that he was entitled to three of decedent's

private bank accounts, including one of decedent's IRAs.

On June 20, 2014, Wells Fargo Advisors, LLC (WFA), the

custodian of decedent's IRA accounts, filed an intervenor answer,

affirmative defenses, and a complaint for interpleader, requesting

the court determine the beneficiaries of the IRA accounts. In

July 2014, the charitable organizations and Wells Fargo Bank filed

a joint motion for partial summary judgment on count one of

plaintiffs' complaint. Plaintiffs then filed a cross-motion for

summary judgment on count one. On October 31, 2014, the court

granted respondents' motion and entered an order dismissing count

one of plaintiffs' complaint.

Following additional discovery, the charitable organizations

again moved for summary judgment, seeking to dismiss count two of

3 A-4693-14T4
plaintiff's complaint and the counterclaim filed by Thomas. WFA

also moved for summary judgment on its interpleader complaint, and

plaintiffs filed a cross-motion for summary judgment. On May 12,

2015, after oral argument, the court granted respondents' motion

and entered an order dismissing count two of plaintiffs' complaint

and Thomas's counterclaim.

This appeal followed. Given the nature of the record, we

first address the issues pertaining to count one, and then we

separately address the issues concerning count two.

I.

We discern the following facts relating to count one, viewed

in the light most favorable to appellants, the non-moving parties.

Ramos v. Flowers, 429 N.J. Super. 13, 16 (App. Div. 2012).

Decedent enjoyed a long career as a medical doctor,

specializing in ophthalmology. He married twice but produced no

children from either marriage. However, decedent maintained a

friendship with Thomas for over forty years, and Thomas certified

he was decedent's close companion. Toward the end of decedent's

life, Thomas saw him on a daily basis, serving as his "driver,

deliveryman, confidante, business associate, [and] adviser."

Plaintiffs are the children of decedent's once-estranged

brother, and were decedent's next closest relatives. According

4 A-4693-14T4
to their complaint, decedent referred to plaintiffs as "his only

family."

In the summer of 2012, decedent became ill from complications

of prostate cancer and a colostomy, resulting in a lengthy stay

at Riverview Hospital (Riverview) from June 16, 2012 through August

24, 2012. Following this stay, at the urging of plaintiffs and

Thomas, decedent agreed to move into the Brandywine assisted living

facility (Brandywine). Decedent passed away on May 24, 2013,

after being rushed from Brandywine to the Riverview emergency

room.

Decedent executed several wills and trusts over his lifetime,

the first on July 14, 1998 (1998 Will). The 1998 Will devised a

large portion of decedent's estate to plaintiffs.

Over ten years later, in the spring of 2010, decedent hired

attorney Stephen J. Oppenheim to handle his estate planning

matters. Oppenheim testified at deposition that he recommended

decedent "use a revocable trust as the primary vehicle to dispose

of his [e]state[,] with a beneficiary designation for his IRA[,]"

in addition to creating a "pour-over" will.1 He noted that in

2010, decedent's estate was valued at approximately six million

dollars.

1
Oppenheim explained that a "pour-over" will adds an estate
"to the trust fund to be administered and distributed as the trust
agreement provided."
5 A-4693-14T4
 On July 9, 2010, decedent executed a trust document, titled

"Trust Agreement[,] The Merritt E. London Trust" (July 2010 trust).

This trust provided for a one-time $100,000 bequest to each

plaintiff, and created trusts for each plaintiff, with each trust

funded by 40 percent of the residual estate. It further provided

for a $25,000 bequest to decedent's housekeeper, and $10,000

bequests to Thomas and sixteen other friends and relatives; the

trust further provided for bequests to three listed charities, and

bequeathed 10 percent of the residual estate to six charitable

organizations.

Two years later, during his hospitalization at Riverview in

the summer of 2012, decedent executed several revised trust

documents, each time altering the amounts devised to plaintiffs

and certain charitable organizations. First, on June 22, 2012,

decedent executed a will, beneficiary designation, and trust (June

2012 Trust), which lowered the one-time bequests to plaintiffs to

$50,000 each. It further lowered the percentage of their residual

estate trusts to 25 percent each and divided 40 percent among six

named charitable organizations. It also granted Thomas a $75,000

specific bequest.

Shortly thereafter, on July 7, 2012, decedent executed a new

trust agreement (July 2012 Trust), will, beneficiary designation,

and power of attorney. In relevant part, the July 2012 Trust

6 A-4693-14T4
eliminated the one-time specific bequests to plaintiffs and

reduced the amount they would receive in trust to $600,000 each;

it also granted decedent's housekeeper a $500,000 trust. The

remainder was to be placed in trust for named charitable

organizations. Thomas retained his $75,000 bequest.

Next, on August 17, 2012, Oppenheim met with decedent at

Riverview, where he executed a new will, trust agreement, and

beneficiary designation. The trust, dated August 21, 2012 (August

2012 Trust), increased the amount for plaintiffs to $1,000,000

each, in trust, and retained the housekeeper's trust. It devised

the remainder as 19 percent each to the Riverview Medical Center

Foundation, NYU Langone, the Simon Wiesenthal Center, the

Salvation Army, and Jewish Service, and 5 percent to B'nai B'rith.

It further maintained a $75,000 specific bequest for Thomas.

On October 4, 2012, decedent executed a document revising the

August 2012 trust, titled "The Merritt E. London Trust[,] First

Amendment of Trust Agreement." (October 2012 Amendment). The

October 2012 Amendment removed Riverview as a beneficiary of the

residual estate, instead dividing 95 percent equally to the

remaining organizations and continuing 5 percent to B'nai B'rith.

Several months later, on April 5, 2013, Oppenheim wrote to

decedent and enclosed copies of several pages of the July 2012

Trust. Oppenheim noted that these pages listed "the names of

7 A-4693-14T4
[decedent's] beneficiaries, the amounts provided for each of them,

and for [decedent's] [t]rusts for the benefit of [his housekeeper],

Patti, and Mark, and the [o]rganizations' shares of any

distribution provided for them." At deposition, Oppenheim could

not recall why he sent these documents to decedent, but noted it

must have stemmed from "a conversation with somebody."

Decedent's Wells Fargo financial advisor, Anthony Frigoletto,

testified at deposition that approximately one month later, on May

11, 2013, he met with decedent at Brandywine to discuss changes

to his estate plan, which he marked on a copy of the July 2012

Trust. These changes involved granting decedent's brother a

$100,000 bequest, granting Riverview 28 percent of the residuary

reserved for the organizations, and decreasing NYU Langone's share

to 10 percent. Frigoletto faxed Oppenheim a copy of the marked

document on May 13, 2013, informing him decedent "still wants

changes."

Oppenheim then met with decedent at Brandywine on May 15,

2013. According to Oppenheim's memorandum of that date, he and

decedent discussed changes to his trust agreement, which included

giving "specific amounts to the beneficiary organizations" and

"divid[ing] the balance of the trust fund between Patti and Mark."

Oppenheim made notations of these changes on an unexecuted copy

8 A-4693-14T4
of the August 2012 Trust. At deposition, he described the meeting

as follows:

I sat down with [decedent], and I had a
copy of the last trust agreement with me. I
knew what he wanted. Generally[,] he wanted
to talk to me about changes. And we went over
that trust agreement paragraph by paragraph.
And he told me about the changes that he wanted
to make. And I made little notes on my copy
of the trust agreement.

Oppenheim affirmed he was "absolutely certain" that his

notations were the changes decedent described at their May 15

meeting. He thus prepared a new trust agreement (May 2013 Trust),

granting eleven specific bequests to eleven friends and relatives,

including $50,000 for Thomas and $100,000 for decedent's brother.

The trust further devised the residual estate to Patti and Mark

in equal shares, replacing the charities previously designated,

minus the $500,000 trust fund still allocated to his housekeeper.

The revised plan further granted specific bequests to the following

charities: $10,000 to the United Way of Monmouth County, $10,000

to the Foodbank of Monmouth and Ocean Counties, $70,000 to

Riverview, $40,000 to NYU Langone, $40,000 to the Simon Wiesenthal

Center, $40,000 to the Salvation Army, $40,000 to Jewish Service,

and $25,000 to B'nai B'rith.

Oppenheim testified he hand-delivered an unsigned copy of the

May 2013 Trust to Brandywine at 8:00 a.m. on May 22, 2013, leaving

it with a member of the staff for delivery to decedent. Although
9 A-4693-14T4
he could not remember the exact date, Oppenheim recalled a

subsequent phone conversation where decedent said he received the

document and "was going to look at it"; however, Oppenheim added

he did not believe decedent did so.

Oppenheim further stated he did not know whether decedent was

going to sign the May 2013 Trust, because he "expected [decedent]

to review it and to let [him] know whether he approved of it. And

if he did, then [they would] have a signing ceremony." When asked

if the document he dropped off "could have been executed[,]"

Oppenheim answered, "Not really. It could have been executed if

the execution was accompanied by witnesses and by a Notary and if

we had done it in the formal way." He added, "If [decedent]

approved it, we would not have had to make any change. I might

have prepared another document . . . or I might not have. But

that certainly could have been used, yes."

Oppenheim also attached a cover sheet to the May 2013 Trust,

which he testified summarized the major changes "in a very

abbreviated form." The cover sheet stated that if decedent found

the May 2013 Trust satisfactory, Oppenheim would prepare a will,

new beneficiary designation, and power of attorney, and help

decedent execute the documents. Oppenheim asked decedent to call

him "after you complete your review of the new Trust Agreement."

10 A-4693-14T4
 Frigoletto testified decedent called him after he received

the new document, requesting he "come down there and see him

because he wanted me to read something with him, the new draft,

and he wanted my opinion with what was written." Frigoletto then

called Oppehnheim to obtain a copy of the trust. Frigoletto

received an email from Oppenheim, dated May 22, 2013, containing

a copy of the May 2013 Trust and advising that decedent "decided

recently that his niece and nephew should receive the biggest part

of his estate, free of trust, instead of the organizations named

by his current Trust Agreement." After receiving this email,

Frigoletto again spoke to decedent, who asked Frigoletto "what

[he] thought" and "pleaded with [Frigoletto] to come down" to meet

with him.

When asked whether he believed decedent had reviewed the May

2013 trust, Frigoletto stated, "Oh, I know he hadn't reviewed it.

I know he hadn't read it because he said he was waiting to see me.

He certainly knew what was in it because he knew what I was talking

about in our conversation, and he seemed apprehensive, but that's

just an opinion." Later in the deposition, Frigoletto stated he

was unsure whether decedent reviewed the document at the time of

the second phone call, but he knew decedent did not have it in

front of him when they spoke. Frigoletto then described the

conversation that followed:

11 A-4693-14T4
Q. And did you read the document to him
line-by-line?

A. No.

Q. Did you read any specific provisions to
him?

A. Yes.

Q. Which ones did you read to him?

A. The main – the addition of his brother,
the changes of some of the moving parts, and
that's about it, and then it concluded with
that I was – based on every single
conversation that I've ever had with him that
I was surprised about the size and how big
this change was, but that being said, "It's
your money. You can give it away however you
like, obviously. You don't need me to come
down there and review it with you if this is
what you want to do."

And then, again, he asked me if I would
come down and he wanted me there fast.

. . . .

Q. And did he indicate to you that he
intended to sign the document as written?

A. No, he never indicated that.

Q. And at the end of the call did he still
express a desire to review the document with
you?

A. Yes.

Q. And did you make plans to go and review
the document with him?

A. Sure, but at that point I was concerned
about the fact that I thought he knew what was
in the document and I didn't really know why
12 A-4693-14T4
 he needed me to endorse it, and I told him
again "you don't need me to drive down there
for you to do what you want to do." You know,
"If you want, just do what you need to do,
sign it and send it in."

Q. But he still expressed the desire to
speak with you?

. . . .

A. Yes.

Q. And to review the document with you?
. Yes.

Mark certified that on the afternoon of May 22, decedent told

him, "I am signing a new [w]ill, and I am providing for your father

for the first time." Thomas similarly certified that "[a] few

days before his death[, decedent] told me his will was dropped off

and it reflects his 'wishes' or 'desires.'"

On May 23, 2013, decedent complained of severe pain, prompting

Thomas and Felipe Alicos, decedent's caretaker, to drive decedent

to the emergency room in Thomas's car. Both men certified that

on the way to the emergency room, decedent asked to return to

Brandywine so he could sign his "will"; however, Thomas refused

to turn around because he felt decedent needed urgent care. Alicos

further certified that after arriving in the emergency room,

decedent continued to insist on signing his will.

Thomas eventually traveled to Brandywine and located a manila

envelope on decedent's desk, as decedent had instructed. However,

13 A-4693-14T4
he was unable to see decedent until 4:00 p.m. the next day, May

24, 2013; by that point, decedent was not in a condition to sign

the documents. Decedent passed away without signing at 11:30 p.m.

that night.

On May 25, 2013, Oppenheim met with Mark and Thomas at

Brandywine. He testified that the envelope containing the May

2013 Trust was "sealed in just the same way that [he had] sealed

it," but he also admitted his secretary could have closed the

envelope. Oppenheim opened the envelope, verifying decedent had

not signed the document. Oppenheim said he had hoped to find

decedent's signature, but acknowledged he was "expecting it had

not been signed."

Following oral argument on count one, the motion judge

rendered a decision from the bench, granting summary judgment for

respondents. Applying our holding in In re Probate of Will and

Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010), the judge

concluded:

. . . [I]t is clear to the [c]ourt that
the Macool test has not been met by the
petitioners in this case. I find that
pursuant to Macool . . . , we hold for a
writing to be admitted into probate as a
[w]ill under [N.J.S.A.] 3B:3-3 the proponent
of the writing intended to constitute such a
[w]ill must prove, and we're talking about a
trust here, 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
14 A-4693-14T4
one of these elements a trier of fact can only
speculate as to whether the proposed writing
accurately reflects the decedent's final
testamentary wishes.

And in this case it is clear to the
[c]ourt that the plaintiffs have not shown by
clear and convincing evidence that the
decedent actually reviewed the document in
question. Mr. Oppenheim testified that the
envelope was in the exact same condition that
he had delivered it to Dr. London. Although
there is some testimony by Mr. Frigoletto that
he went over this testimony, reviewed this
testimony with Dr. London I find that that is
not sufficient, and that the testimony really
is that he never reviewed it with Dr. London.

. . . [I]n Macool . . . [the testator]
never had the opportunity to confer with
counsel after reviewing the document to clear
up any ambiguity, modify any provision or
express her final assent to this rough draft.

And that's exactly what happened here. I
find that the decedent never actually reviewed
the document in question and he never, ever
gave his final assent to it. Neither elements
have been proven by the plaintiffs by clear
and convincing evidence.

I also find that it's not clear that Dr.
London actually reviewed it. He talked it
over with Mr. Frigoletto and they talked about
various parts of it, but . . . I find that
that review was not sufficient in this case.

And also, I find that, so the first prong
is not met, and the second prong, giving his
final assent to it, that wasn't met either
because the circumstances show that he never
gave his final assent to that [w]ill, to that
alleged [w]ill.

So I find that [N.J.S.A.] 3B:3-3 has not
been complied with, that the test set forth
15 A-4693-14T4
 in Macool has not been complied with by
plaintiffs. There are no issues of material
fact at this point and I will grant partial
summary judgment to . . . the respondents in
this case. The writing that purports to be
the trust of Merritt London will not be
admitted.

We review a grant of summary judgment under the same standard

as the motion judge and accord "no special deference" to the

judge's legal determinations. Templo Fuente De Vida Corp. v.

Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016).

We must grant summary judgment "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." Ibid. (quoting R.

4:46-2(c)). "The inquiry is 'whether the evidence presents a

sufficient disagreement to require submission to a jury 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)).

Ordinarily, a will2 must comply with the following

requirements of N.J.S.A. 3B:3-2:

2
If an instrument is clearly testamentary in nature, its validity
depends upon whether the proofs demonstrate that it was executed
16 A-4693-14T4
 a. Except as provided in subsection b. and in
[N.J.S.A.] 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.

Plaintiffs acknowledged that decedent did not sign or hand-

write the May 2013 Trust. Rather, they argued the facts supported

in accordance with the formal requirements of the statute of wills,
N.J.S.A. 3B:3-1 to -49, and with the requisite testamentary intent.
See In re Catanio, 306 N.J. Super. 439, 445 (App. Div. 1997)
(holding a document labelled a trust to comprise instead a codicil,
because the document "by its own terms provides that it will become
effective upon the settlor's death," while also noting that the
document had been executed in compliance with the statute of
wills).

17 A-4693-14T4
admitting the trust to probate under N.J.S.A. 3B:3-3, which

provides:

Although a document or writing added upon a
document was not executed in compliance with
[N.J.S.A.] 3B:3-2, the document or writing is
treated as if it had been executed in
compliance with [N.J.S.A.] 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; (2) a partial or complete revocation of
the will; (3) an addition to or an alteration
of the will; or (4) a partial or complete
revival of his formerly revoked will or of a
formerly revoked portion of the will.

[N.J.S.A. 3B:3-3.]

As noted, the motion judge rejected this argument, finding

plaintiffs failed to provide evidence that decedent reviewed and

assented to the document prior to his death, as required by Macool,

supra, 416 N.J. Super. 298. Now on appeal, plaintiffs and Thomas

argue the judge erred because she disregarded the summary judgment

standard and made factual conclusions that fell within the purview

of "the trier of fact after a full evidentiary trial," and she

ignored material facts favoring their position. They further

assert the judge erred by failing to distinguish Macool, contending

the record contains material evidence showing decedent did review

and assent to the May 2013 Trust.

In Macool, we held the facts at issue supported the trial

court's refusal to admit an unsigned will to probate. Similar to
18 A-4693-14T4
the instant matter, the testator in Macool met with her attorney

prior to her death to discuss changes to her will. At the meeting,

she gave the attorney a list of handwritten notations, two of

which were unclear as to her intent. Id. at 304, 309. The

attorney "dictated the entire will while [the testator] was there,"

and then had his secretary type a rough draft version. Id. at

304-05. The attorney expected the testator to return to review

the draft; however, she passed away approximately one hour after

leaving his office. Id. at 305.

Construing N.J.S.A. 3B:3-3, we established the following two-

prong test for admitting a writing to probate under this provision:

[F]or 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.

[Macool, supra, 416 N.J. Super. at 310.]

We affirmed, in relevant part in Macool, concluding the

testator failed to meet both prongs of the test. Ibid.

Significantly, we observed that the testator "never had the

opportunity to confer with counsel after reviewing the document

to clear up any ambiguity, modify any provision, or express her

19 A-4693-14T4
final assent to this 'rough' draft." Id. at 309. We labeled the

will a "work in progress" because the attorney purposely omitted

two named beneficiaries, and we found the lack of clarity in the

testator's notes "render[ed] their inclusion in the draft will

problematic." Ibid. However, we determined that "a writing

offered under N.J.S.A. 3B:3-3 need not be signed by the testator

in order to be admitted to probate." Id. at 311. We further

noted, "[h]ad [the testator] been able to read the draft will

. . . and thereafter express her assent to its content in the

presence of witnesses or by any other reasonably reliable means,"

the result would have been different. Id. at 312.

We confirmed the Macool holding in In re Estate of Ehrlich,

427 N.J. Super. 64, 71-72 (App. Div. 2012), certif. denied, 213

N.J. 46 (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

[N.J.S.A. 3B:3-2]'s formal requirement, the more difficult it will

be to satisfy [N.J.S.A. 3B:3-3]'s mandate that the instrument

reflect the testator's final testamentary intent." Ehrlich,

supra, 427 N.J. Super. at 72-73. We emphasized that N.J.S.A.

3B:3-3

places on the proponent of the defective
instrument the burden of proving by clear and
convincing evidence that the document was in
fact reviewed by the testator, expresses his
20 A-4693-14T4
 or her testamentary intent, and was thereafter
assented to by the testator. In other words,
in dispensing with technical conformity,
[N.J.S.A. 3B:3-3] imposes evidential
standards and safeguards appropriate to
satisfy the fundamental mandate that the
disputed instrument correctly expresses the
testator's intent.

[Id. at 74.]

However, in Ehrlich we affirmed the trial court's admission

of an unsigned will to probate, which had been discovered in a

drawer in the testator's home. Id. at 68. We found that the

testator, a trusts and estates attorney, had clearly prepared and

reviewed the will himself. Id. at 67, 74. We further determined

he gave final assent to the will, because he made a handwritten

notation stating he sent the original to the executor and trustee

of his estate, and "in the years following the drafting of this

document . . . repeatedly orally acknowledged and confirmed the

dispositionary contents therein to those closest to him in life."

Id. at 74-75.

Having considered both Macool and Ehrlich, we agree with the

motion judge that even giving plaintiffs the benefit of all

favorable inferences, the record lacks evidence to support

admission of the May 2013 Trust to probate under N.J.S.A. 3B:3-3.

Nor do we discern any basis to conclude that an evidentiary trial

would yield any additional relevant evidence to satisfy the

requirement of proof, by clear and convincing evidence, that
21 A-4693-14T4
decedent reviewed and assented to the document. Notably, the

record contains no evidence from which a trier of fact could

conclude that decedent "confer[red] with counsel after reviewing

the document to clear up any ambiguity, modify any provision, or

express [his] final assent." Macool, supra, 416 N.J. Super. at

309.

Indeed, Oppenheim only testified he had an initial "s[it]

down" with decedent to go over his changes "paragraph by

paragraph," making handwritten notes on a copy of the August 2012

Trust. This clearly did not constitute review or assent, as the

testator in Macool also discussed changes with her attorney in a

similar manner. Id. at 304-05. Oppenheim clearly expected

decedent to contact him again to express his final approval, which

never occurred. Additionally, although we agree with appellants

that decedent did not have to "read" the document himself,

Oppenheim's testimony regarding the envelope strongly supports the

conclusion decedent did not review its contents.

Furthermore, although Frigoletto testified he went over

"specific provisions" with decedent, his testimony clearly shows

that decedent desired to wait to review the document with him in

person. As in Macool, decedent's knowledge of the contents does

not establish review. Moreover, decedent's repeated requests to

22 A-4693-14T4
meet with Frigoletto strongly suggest uncertainty as to the

finality of the proposed changes.

We are therefore satisfied the record reflects no genuine

issue as to whether decedent reviewed and assented to the May 2013

Trust prior to his death. Since plaintiffs cannot show decedent

reviewed the draft, any further inquiry beyond summary judgment

would be to engage in "speculat[ion] as to whether the proposed

writing accurately reflects the decedent's final testamentary

wishes." Id. at 310. Decedent's emergency requests that Thomas

retrieve his "will" for signing do not show he reviewed the May

2013 Trust or assented to its contents. Consequently, we affirm

the order dismissing count one of plaintiffs' complaint.

II.

We now address the grant of summary judgment on count two,

again reviewing the facts in the light most favorable to plaintiffs

and Thomas. Ramos, supra, 429 N.J. Super. at 16. We discern the

following facts from the record.

According to WFA's interpleader complaint, decedent opened

two IRAs with First Union Bank in 1997, under account numbers

xxxx-9415 and xxxx-3249. Wells Fargo later acquired First Union,

including decedent's accounts. At the time of his death, WFA

possessed two IRAs belonging to decedent, account xxxx-3249,

valued at $880,500, and xxxx-7439, valued at $787,086.32.

23 A-4693-14T4
 WFA also possessed "undated IRA Account and Simplified

Employee Beneficiary Designations for [d]ecedent's IRA accounts."

These forms designated Patti and Mark as beneficiaries of two

First Union accounts: Simplified Employee Pension Plan (SEP) xxxx-

5059, and IRA xxxx-5019.

WFA further noted it "received an incomplete IRA beneficiary

form in October 2012 that did not have any account numbers on it

and stated 'see attached.'" The attachment listed certain

charitable organizations as the beneficiaries. This is a reference

to the "Beneficiary Designation" form decedent executed on October

4, 2012, in connection with the October 2012 Amendment. The form

states, "All benefits that become payable from my Wells Fargo

individual retirement account in the event of my decease shall be

paid as this Beneficiary Designation provides." It then devises

various portions to the named charitable organizations.

The record shows that in January 2013, decedent advised

Frigoletto that he wanted to open a joint checking account, payable

on death (POD) to Thomas. On January 14, 2013, Wells Fargo

employee Zelmira Cappola opened a "PMA Premier Checking" account

for decedent, account number xxxx-4068, POD Thomas. On January

15, $200,000 was transferred into that account. Next, on January

23, 2013, decedent designated a traditional brokerage account,

number xxxx-8954, as transfer on death (TOD) Thomas. On January

24 A-4693-14T4
28, the $200,000 sum from xxxx-4068 was transferred into this new

brokerage account.

According to the Wells Fargo system, Cappola entered a note

in "London Household Notes from Client Link," dated January 14,

2013, which appears to indicate she intended to link the new

checking account xxxx-4068 to brokerage account xxxx-8954.

However, for reasons that are unclear, the checking account was

linked to decedent's IRA, xxxx-3249, as part of a Wells Fargo

"Private Banking PMA Package." In addition to accounts xxxx-4068

and xxxx-3249, decedent's PMA Package contained a third account,

xxxx-5162, labeled "Retirement Savings."

The summary pages on decedent's PMA Package statements from

January through April 2013 are labeled "MERRIT EVAN LONDON MD[;]

POD THOMAS ARNOLD." Each statement lists the total combined assets

of the three accounts; the April 30, 2013 statement shows

$834,776.36 in total assets: $834,739.26 from the IRA account,

xxxx-3249, $29.98 from the "Retirement Savings" account, xxxx-

5162, and $7.12 from "PMA Premier Checking Account," xxxx-4068.

However, on the individual pages for each account, only the PMA

Premier Checking Account, xxxx-4068, is listed POD Thomas.

At deposition, Cappola stated the linked accounts were

related "[j]ust for statement purpose[s] . . . . They each have

their own title, so they belong to [decedent], but they're three

25 A-4693-14T4
different accounts." She noted that when customers open a PMA

checking account, they can link other accounts of their choosing,

or they can let Wells Fargo automatically attach all available

accounts that are not otherwise linked, in order to meet the

$25,000 minimum balance for the PMA checking account. She did not

remember if decedent chose to link the accounts at issue but

conceded it was possible he intended to do so.

Frigoletto testified he believed Cappola linked the PMA

checking account "erroneously or for whatever the reason . . . to

two other existing accounts probably in an effort to get some sort

of store credit or something they do in a community bank for

opening accounts." He noted, although the PMA Package statement

listed POD Thomas, the PMA statement had actually "tagged two

accounts . . . that [Thomas] wasn't listed as payable on death

on." He further stated Cappola lacked the authority to change the

beneficiaries on pre-existing accounts. According to Frigoletto,

decedent never executed a change of beneficiary designation

granting Thomas the IRA. However, he conceded decedent never

attempted to remove the POD designation from the PMA Package, and

said it was possible decedent could have spoken to Cappola about

changing the beneficiary designation.

Mark claimed that in early 2013, decedent said he desired to

grant Thomas "less of a specific bequest through his Estate and

26 A-4693-14T4
more outside of his Estate." Thomas similarly claimed that

decedent intended to leave him approximately $1,000,000, as

demonstrated by his "attempt to designate certain bank accounts

as POD Thomas Arnold." Thomas therefore requested a declaration

"that the three accounts located in the Private Banking PMA Package

with account numbers [xxxx-]3249, [xxxx-]5162 and [xxxx-]4068 were

intended by the decedent . . . to be gifted to Thomas Arnold

outside his will and trust associated with the will."

Conversely, respondents contended Cappola "erroneously"

linked checking account xxxx-4068 to one of decedent's IRA

accounts. They further asserted that notwithstanding this error,

decedent's October 4, 2012 Beneficiary Designation form, the last

version decedent executed prior to his death, governed the

beneficiaries of his IRA accounts.

Addressing the parties' arguments from the bench at the motion

hearing, the judge found the PMA Package statements designating

POD Thomas

did nothing to alter the ownership or
beneficiary designation on either Dr. London's
Wells Fargo IRA accounts and other accounts.
So the statement itself makes it clear that
[Thomas] had not been designated as POD
beneficiary on the account. And all the
testimony is clear to the [c]ourt that those
three accounts were for the specific purpose
. . . of making [Thomas] the POD beneficiary
of a certain account, not the brokerage
account 3249.

27 A-4693-14T4
 She next addressed the October 4, 2012 Beneficiary

Designation form, which plaintiffs argued should not control

because it stated "account" instead of "accounts," and did not

identify specific account numbers. The judge found:

It's signed and witnessed. It had a
date, 10/4/2012. It's signed by Merritt
London and it is witnessed by Stephen
Oppenheim. And that was the last designation
that Dr. London made.

The [c]ourt finds that the absence of
account numbers are not fatal to the
beneficiary designation forms. That Dr.
London, between June 2010 and October 2012
used the forms given to him by Wells Fargo.
The specific form prescribed by Wells Fargo
was utilized in every instance, there were
attachments to it, each was received by Wells
Fargo and Mr. Frigoletto of Wells Fargo helped
Mr. Oppenheim and [decedent] prepare them.

[N.J.S.A. 17:16I-6] does not require that
the account numbers be specified on the
written notice or order, so I find that the
technical requirements of the statute have
been fully complied with. Each of those
beneficiary designation forms were executed.
There is no room for doubt that Dr. London
intended both of his IRA accounts to be
governed . . . thereby.

The forms were prepared by Dr. London's
attorney as part of his estate plan and they
were incorporated by and – the forms were
provided by Wells Fargo. Wells Fargo
representative Anthony Frigoletto actively
was involved in the process which led to the
change of beneficiary forms.

Finally, addressing plaintiffs' argument that the First Union

beneficiary form should control, the judge stated:
28 A-4693-14T4
 It is clear to the [c]ourt that the
beneficiary forms of First Union Bank do not
apply in this case. . . . We have no idea
what exactly happened to those accounts,
whether they were changed. And even if they
are the same accounts that were there in many,
many years ago, they have now been changed
over the years by Dr. London.

It is clear to the [c]ourt that Dr.
London sought to change his beneficiaries. He
did it on numerous occasions. . . . It would
be unclear or be improbable that Dr. London
would, after making all these changes in
beneficiaries over those months from 2010 to
2012, would think that his original
designation many, many years ago at First
Union Bank[,] which no longer exists apply.

Now on appeal, Thomas argues the judge erred as a matter of

law by applying N.J.S.A. 17:16I-6, which is not applicable to IRA

accounts, instead of N.J.S.A. 3B:30-1 to -12, which governs IRAs.

Furthermore, both plaintiffs and Thomas argue the judge erred by

misinterpreting the facts to favor respondents.

We first address Thomas's statutory argument. In rendering

her decision, the judge applied the Multiple-party Deposit Account

Act (MDPA), N.J.S.A. 17:16I-1 to -17. The MDPA defines

"[a]ccount[s]" as "contract[s] of deposit of funds between a

depositor and a financial institution," which includes checking

and savings accounts. N.J.S.A. 17:16I-2(a). It defines "multiple-

party account[s]" to include "(1) a joint account, (2) a P.O.D.

account, or (3) a trust account." N.J.S.A. 17:16I-2(e). The MDPA

outlines formal requirements for altering account beneficiaries:
29 A-4693-14T4
 The provisions of section 5 as to rights of
survivorship are determined by the form of the
account at the death of a party. This form
may be altered by written notice or order
given by a party to the financial institution
to change the form of the account or to stop
or vary payment under the terms of the
account. The order or request must be signed
by a party, received by the financial
institution during the party’s lifetime, and
not countermanded by other written order of
the same party during his lifetime.

[N.J.S.A. 17:16I-6.]

A different statute, the Uniform TOD Security Registration

Act (UTSRA), N.J.S.A. 3B:30-1 to -12, applies to "[s]ecurity

account[s]," which include "a cash balance in a brokerage account

. . . or a brokerage account." N.J.S.A. 3B:30-2. Importantly,

the UTSRA contains no formal requirement for changing a

beneficiary, instead providing: "A registration of a security in

beneficiary form may be cancelled or changed at any time by the

sole owner or all then surviving owners, without the consent of

the beneficiary." N.J.S.A. 3B:30-7. The act further urges liberal

construction, and allows courts to use "the principles of law and

equity [to] supplement its provisions." N.J.S.A. 3B:30-12.

A review of the statements for the decedent's IRA, xxxx-3249,

show it is a brokerage account dependent on mutual funds, which

suggests the UTSRA applies here as well. Thomas further asserts

that the dispute in this case does not concern multiple-party

deposit accounts but "individually owned security accounts."
30 A-4693-14T4
 Nonetheless, we need not make an ultimate determination on

this issue, as we reach the same conclusion under either statute.3

First, the judge correctly determined the October 2012 beneficiary

form met the formal requirements of N.J.S.A. 17:16I-6. Second,

there is no evidence decedent effected a beneficiary change of IRA

xxxx-3249 to satisfy N.J.S.A. 3B:30-7. Review of the entire PMA

Package shows the POD Thomas designation referred to the PMA

Premier Checking Account only. Even if decedent actually intended

to link the accounts, there is no evidence he ever designated

Thomas as a beneficiary of IRA account xxx-3249. Given the lack

of evidence to the contrary, the principles of equity do not

require a different result. N.J.S.A. 3B:30-12.

We reject plaintiffs' and Thomas's remaining arguments,

substantially for the reasons expressed by the motion judge. The

October 2012 beneficiary form, which states "account" in the

singular and does not list account numbers, does not change the

result. We conclude the form applies to both of decedent's IRA

accounts, which he devised to the charitable organizations.

Furthermore, the judge correctly found that the First Union forms,

designating plaintiffs as the beneficiaries of different IRA

3
We have the authority to affirm the lower court "for reasons
other than those expressed by the judge." Price v. N.J. Mfrs.
Ins. Co., 368 N.J. Super. 356, 359 n.1 (App. Div. 2004), aff'd,
182 N.J. 519 (2005).
31 A-4693-14T4
accounts, were not sufficient to entitle plaintiffs to decedent's

second IRA account. Based on the evidence in the record, any

claims regarding decedent's intent to leave Arnold money outside

of his estate do not alter our conclusions. In summary, we are

satisfied the motion judge did not err by granting summary judgment

in favor of respondents. Any arguments not explicitly addressed

lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

Affirmed.

32 A-4693-14T4