NOT FOR PUBLICATION WITHOUT THE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-0561-15T3
IN THE MATTER OF THE ESTATE OF
SAMUEL JOSEPH FEINER, DECEASED.
_______________________________
LYLE BROOCHIAN and MOSHE
FEINER,
Plaintiffs-Respondents,
v.
USHER FEINER and PEARL
BERKOVITS,
Defendants-Appellants.
_______________________________
CHILDREN OF DAVID FEINER,
Intervenors-Respondents.
_____________________________________
Submitted September 25, 2017 – Decided October 3, 2017
Before Judges Sabatino, Whipple and Rose.
On appeal from Superior Court of New Jersey,
Ocean County, Chancery Division, Docket No.
190695.
The Salvo Law Firm, PC, attorneys for
appellants (Cindy D. Salvo, on the briefs).
Law Offices of Taff & Davies, attorneys for
respondent Lyle Broochian (Joel A. Davies, of
counsel and on the brief, Matthew K. Kalwinsky
and Christina V. Acker, on the brief).
Keith, Winters & Wenning, LLC, attorneys for
respondent Moshe Feiner (Michael J. Wenning,
on the brief).
The Kelly Firm, PC, attorneys for intervenors-
respondents (Chryssa Yaccarino, on the letter
relying on the briefs filed on behalf of
respondents).
PER CURIAM
This marathon probate litigation was adjudicated through a
protracted trial that consumed twenty-five days over a ten-month
period, following four years of pretrial discovery supervised by
the trial judge. The dispute within this Orthodox Jewish family
pitted two siblings, plaintiffs Lyle Broochian ("Lyle") and Moshe
Feiner ("Moshe"), against their siblings, defendants Usher Feiner
("Usher") and Pearl Berkovits ("Pearl").1 The dispute centered
upon wills and inter vivos transfers of property of the siblings'
now-deceased parents, Samuel Feiner ("Samuel") and his wife Sara
Feiner ("Sara"), which plaintiffs challenged as invalid.2
After considering extensive testimony and more than a hundred
exhibits, the trial judge issued a detailed oral opinion over the
course of two days, declaring Sara's and Samuel's wills null and
1
For ease of reference, we use first names for the family members
mentioned in this opinion, intending no disrespect in doing so.
2
At times Sara's first name is spelled in the record as "Sarah."
2 A-0561-15T3
void, removing Pearl as administrator of Sara's estate, and
appointing a substitute independent administrator. Having
nullified the wills, the judge ordered the distribution of the
assets of the estates instead by intestacy. The judge also
invalidated various inter vivos transfers of real and personal
property. The judge awarded counsel fees to the prevailing
parties. In addition, the judge denied defendants' motion to set
aside the final judgment because of their claimed inadvertent,
post-trial discovery of a 1979 will purportedly executed by Samuel.
Defendants now appeal, challenging a host of the trial judge's
determinations and claiming that his evidential and legal
decisions were flawed and biased. We discern no merit to
defendants' contentions, and therefore affirm.
I.
There is no need for us to repeat here the lengthy factual
chronology comprehensively set forth in the trial judge's two-day
oral opinion. We offer the following synopsis, recognizing that
defendants dispute many of the judge's factual determinations.
Samuel was a wealthy diamond dealer and property owner who
divided his time between Brooklyn, New York, and, later in his
advanced age, Lakewood, New Jersey. After surviving the Holocaust,
Samuel moved to America as a widower with his daughter, Gita.
3 A-0561-15T3
Gita's mother, Samuel's first wife, was killed by the Nazis during
World War II.
Although Samuel lacked formal education and never became a
fluent English speaker or writer, he functioned capably in Yiddish-
speaking communities and was a successful businessman. He married
Sara, and had with her six additional children: Moshe, Lyle, the
late David Feiner ("David"), Yankiel Feiner ("Yankiel"), Pearl,
and Usher.3
Plaintiffs' challenge to the estates and property transfers
revolved around whether Samuel and Sara intended to largely
disinherit them in favor of defendants Pearl and Moshe. Defendants
were strict followers of Orthodox Judaism, as Samuel and Sara
were. Pearl and Usher lived in Lakewood. Their parents subsidized
their living costs so that both Usher and Pearl's husband could
devote themselves to studying the Torah.
Samuel, with Sara being listed on the titles, purchased
several properties for Usher and Pearl to live in or rent out for
income. Over time, Samuel and Sara eventually purchased their own
house in Lakewood. They titled the property to Congregation Torah
Veyirah D'Satmar ("Satmar"), a Jewish organization affiliated with
3
Yankiel and Gita did not participate as parties in the litigation
but testified for defendants. David's children did not testify
or join the litigation, but their interests were represented by
counsel as intervenors.
4 A-0561-15T3
Usher. Several years later, Sara secured a $1 million mortgage
on the property from Satmar, although there was apparently no
mortgage note or evidence of any debt owed to her.
In 2003, Sara signed a will ostensibly leaving most of her
assets to Samuel and four properties to Pearl. None of the
children claim to have known at the time about that will's
existence. A nonlawyer friend of Usher's apparently drafted the
will after buying a form will packet from a stationery store. The
friend had it notarized after Sara stopped him on the street one
day and asked him to do so. Sara did not have any other will.
In early 2004, on the eve of a trip to Florida, Usher
accompanied Sara and Samuel to the office of a real estate attorney
in order to transfer seven properties from Sara's name to Sara and
Samuel as tenants in common. These were properties that Usher
lived in or managed. Around the same time, Sara assigned the
mortgage for the Satmar property to Usher.
While in Florida, Sara unexpectedly died on January 27, 2004,
suffering a heart attack in a swimming pool. Within weeks of her
death, Usher asked the real estate attorney to re-deed the seven
properties to Sara and Samuel as husband and wife, supposedly
because the previous deeds designating them as tenants in common
had been drafted in error. Although the attorney knew that Sara
had died, he followed Usher's instruction. In 2004, the same
5 A-0561-15T3
attorney handled a transfer of those properties to Usher from
Samuel as widower.
In her 2003 will, Sara named Samuel the executor of her
estate, and in his absence, Pearl. Pearl claimed that Samuel had
renounced his role as executor, but the Surrogate's Court in Ocean
County lacked a record of that renunciation. Nevertheless, in May
2004, the court issued letters testamentary to Pearl, and she
began to probate Sara's estate. Pearl did not notify any of her
siblings about Sara's will, nor did she hire an attorney to manage
the administration. She did, however, hire an attorney to transfer
the estate properties into her individual name. Up until this
trial in 2014 and 2015, the probate on Sara's will was incomplete
and several estate bank accounts remained open.
As of the time Sara died, she and Samuel had been living in
Lakewood alone. She was the primary caretaker for Samuel, who was
much older than her and who had health problems. After her death,
Usher, Usher's wife, and their ten children moved into the Lakewood
mansion with Samuel; Pearl lived next door.
By this point, Usher's wife and Pearl became Samuel's primary
caretakers. Although the parties' testimony varied as to how
independent Samuel was at that time, they essentially agreed that
Samuel continued to study Torah, but he could not understand
complex ideas in English or walk without aid of either a person
6 A-0561-15T3
or walker. To a large extent, Samuel relied primarily on Pearl's
and Usher's families for assistance. Around this time, Usher and
Pearl started a charity in their mother's name, funding it with
$50,000 from Samuel. Usher and Pearl are listed on the charitable
incorporation documents filed with the State, but Samuel is not.
The charity at one point loaned money to Usher.
After their mother died, Usher and Pearl accompanied Samuel,
later in 2004, to make a will with an English-speaking attorney.
Although that attorney testified that he did not remember making
Samuel's will and that he did not keep any notes, the attorney
testified that he would not have participated in the process if
Samuel could not understand him. In his 2004 will, Samuel left
his interest in two Brooklyn properties to be divided equally
among his children and David's children. The residuary of the
estate, including diamonds, properties, bank accounts, and other
assets, were all left in the will to Usher and Pearl, who were
also named Samuel's co-executors.
Samuel died in 2011 at the age of ninety-nine. Upon learning
that Pearl and Usher were attempting to probate Samuel's estate,
Lyle challenged the estate's administration in the Probate Part
in October 2011. In her complaint that Moshe later joined, Lyle
contested the validity of Samuel's 2004 will. The complaint also
contested inter vivos property transfers that had been made by
7 A-0561-15T3
Samuel, claiming that undue influence had been exercised over him
by Pearl and Usher. In addition, plaintiffs contested transfers
that Sara had made and her 2003 will, alleging forgery.
Plaintiffs sought to void these transfers and both parents'
wills, and to administer their estates under New Jersey's intestacy
statutes, N.J.S.A. 3B:5-1 to -14. They also requested attorney's
fees under Rule 4:42-9(a)(3).
Defendants vigorously denied their siblings' allegations of
impropriety. They asserted that Samuel and Sara had purposefully
and legitimately rewarded them for their religious devotion and
caring for their elderly parents.
Over the course of four years, the assigned General Equity
judge, Hon. John A. Peterson, Jr., oversaw a lengthy discovery
process. The judge issued many discovery orders, a number of
which defendants did not comply with fully. Later during trial,
defendants attempted to offer documents into evidence that they
previously had refused to disclose, or which they had denied
existed.
On intermittent trial dates over ten months in 2014 and 2015,
the judge heard extensive testimony from the parties, as well as
all living siblings, the Feiners' attorneys, neighbors, and other
persons who had been involved with the properties.
8 A-0561-15T3
After hearing plaintiffs' case-in-chief, Judge Peterson ruled
that a presumption of undue influence had been "overwhelmingly"
established. That finding was based on the confidential
relationship that Usher and Pearl had with their parents, in
addition to "suspicious circumstances" found by the court
surrounding the creation of the parents' respective wills.
Following the trial, the judge issued his lengthy oral bench
ruling in May 2015. Most fundamentally, the judge found that
Usher and Pearl were not credible. Indeed, the judge's credibility
findings in this regard were repeated and emphatic.
Specifically, in an accompanying eighteen-page May 8, 2015
final judgment, the judge ruled, among other things, that: (1)
Sara's will was void for undue influence; (2) Samuel's will was
also void for undue influence; (3) Pearl and Usher were removed
as executors from the estates and an independent executor was
appointed and ordered to undergo an accounting; (4) the estates
were to be administered based on intestacy laws; (5) property
transfers and mortgage assignments by Sara, Samuel, and their
estates to Usher and Pearl were voided for undue influence; (6) a
$50,000 judgment was issued against defendants for Samuel's money
paid to the charity; (7) Pearl and Usher were to turn over all
personal property, safe deposit boxes, and bank accounts
associated with their parents; and (8) Pearl and Usher were to pay
9 A-0561-15T3
fees for the attorneys of plaintiffs and David's children. In a
separate order, the judge applied a fifty percent fee enhancement
multiplier to the counsel fees that he awarded to plaintiffs and
David's children as prevailing parties.
About three months after the entry of May 2015 final judgment,
Usher and Pearl filed a motion for relief under Rule 4:50-1. They
claimed to have found a 1979 will executed by Samuel that purported
to leave the bulk of his estate to Pearl, Usher, and Lyle. They
contended this will had been left in an area of Usher's (formerly
Samuel's) house that they seldom used, located in a box under the
basement stairs.
The judge ordered limited discovery on the new trial motion.
Following oral argument, the judge denied the motion on April 6,
2016, finding that Usher had not acted diligently in attempting
to locate all documents related to the probate, as he had
possession of the documents in his home the entire time. The
judge also found that Pearl shared responsibility for this failure.
Two days after the judge rejected their new trial motion,
Usher and Pearl nonetheless attempted to probate the 1979 will by
filing a complaint with the Probate Part. The judge dismissed the
probate complaint, citing principles of res judicata, in an order
dated June 15, 2016.
This appeal followed.
10 A-0561-15T3
II.
Through their new counsel on appeal, defendants present
several arguments. They contend that the trial judge improperly
found they had engaged in undue influence, because the evidence
was insufficient to support such a finding. Defendants also assert
that the judge was biased because he personally disfavored parents
disinheriting their children.
Defendants further argue the judge lacked sufficient evidence
to shift the burden of proof as to their parents' wills, or the
inter vivos transfers. They contend that their parents had
deliberately benefited them in their wills due to their religious
devotion, which by contrast, plaintiffs allegedly lacked.
Further, they argue because plaintiffs did not plead undue
influence in their initial complaint concerning Sara's will, the
judge had procedurally erred in ruling against them as to her
estate.
Additionally, defendants argue that the counsel fee
multiplier applied by the trial judge was improper, that the judge
lacked justification to deny their motion for new trial, and that
principles of res judicata did not apply because the validity of
the 1979 will had not been decided.
Having fully considered these contentions, we affirm the
trial court's determinations in all respects, substantially for
11 A-0561-15T3
the cogent and legally sound reasons articulated by Judge Peterson
in his successive decisions in this case. The judge's painstaking
factual findings and credibility rulings adverse to defendants are
amply supported by the extensive trial record. In addition, we
are confident that the judge adhered to the governing law and
applied it fairly and appropriately.
Our Supreme Court has "firmly established in our case law"
that a will may be set aside based upon a demonstration that it
was procured through undue influence. In re Estate of Stockdale,
196 N.J. 275, 302 (2008). The concept of undue influence connotes
"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." Id. at 302-03. This is generally
accomplished "by means of a will or inter vivos transfer in lieu
thereof." Id. at 303.
Typically, the challenger of a will maintains the burden of
proof in showing undue influence. Id. However, that burden shifts
when a beneficiary "stood in a confidential relationship to the
testator and if there are additional 'suspicious' circumstances"
present. Ibid. (citing In re Rittenhouse's Will, 19 N.J. 376,
378-79 (1955)). If the confidential relationship is not a
professional one, as in an attorney-client relationship, the
12 A-0561-15T3
burden may be overcome by a preponderance of the evidence. Ibid.
(citing In re Catelli's Will, 361 N.J. Super. 478, 487 (App. Div.
2003)). "When a confidential relationship exists between a
testator and a beneficiary who draws his will, the court's
suspicions are strongly aroused whether or not a presumption is
created." 5 Alfred C. Clapp, N.J. Practice – Wills and
Administration, § 61 at 214 (1982) (citing Bennett v. Bennett, 50
N.J. Eq. 439 (Prerog. Ct. 1892); Brick v. Brick, 43 N.J. Eq. 167
(Prerog. Ct. 1887)).
The Supreme Court has held that a confidential relationship
exists when "the testator, 'by reason . . . weakness or
dependence,' reposes trust in the particular beneficiary, or if
the parties occupied a 'relation[ship] in which reliance [was]
naturally inspired or in fact exist[ed].'" Stockdale, supra, 196
N.J. at 303 (quoting In re Hooper, 9 N.J. 280, 282 (1952)).
Additionally, a confidential relationship is present "when the
circumstances make it certain that the parties do not deal on
equal terms, but on the one side there is an overmastering
influence, or, on the other, weakness, dependence or trust,
justifiably reposed." In re Codicil of Stroming, 12 N.J. Super.
217, 224 (App. Div.), certif. denied, 8 N.J. 319 (1951). To find
suspicious circumstances that shift the burden, those suspicions
13 A-0561-15T3
"need only be slight." Stockdale, supra, 196 N.J. at 304; see
also Haynes v. First Nat'l State Bank, 87 N.J. 163, 176-78 (1981).
Similar principles apply for setting aside inter vivos gifts
and property transfers on the grounds of undue influence. To
establish a presumption of undue influence and shift the burden
of proof, a challenger must show either that "the donee dominated
the will of the donor, Seylaz v. Bennett, 5 N.J. 168, 172 (1950);
Haydock v. Haydock, 34 N.J. Eq. 570, 574 (E. & A. 1881), or . . .
a confidential relationship exist[ed] between [the] donor and
donee, In re Dodge, [50 N.J. 192, 227 (1967)]; Mott v. Mott, 49
N.J. Eq. 192, 198 (Ch. 1891)." Pascale v. Pascale, 113 N.J. 20,
30 (1988). Accord Sipko v. Koger, Inc., 214 N.J. 364, 376 (2013).
However, inter vivos gifts, unlike wills, do not require
challengers to show suspicious circumstances to be set aside.
Pascale, supra, 113 N.J. at 30-31.
To rebut the presumption after the burden switches, the
beneficiary of a gift challenged for undue influence must establish
his or her case by clear and convincing evidence. Id. at 31. The
beneficiary must prove "not only that 'no deception was practiced
therein, no undue influence used, and that all was fair, open and
voluntary, but that it was well understood.'" Ibid. (citing Dodge,
supra, 50 N.J. at 227).
14 A-0561-15T3
Applying these standards here, Judge Peterson reasonably
determined that plaintiffs had proven that Usher and Pearl had
such a confidential relationship with their parents, and that
there were suspicious circumstances surrounding the wills and
property transfers that shifted the burden to defendants to
establish their validity. The judge concluded that defendants had
not met that shifted burden of showing the legitimacy of the
challenged instruments. We are satisfied there is abundant
evidence in the record to support the judge's findings in this
regard.
We must be mindful that our scope of review is limited.
Although a probate judge's post-trial factual findings concerning
issues of testamentary capacity and undue influence are not
automatically controlling, such findings "are entitled to great
weight [on appeal] 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), (quoting Gellert v. Livingston,
5 N.J. 65, 78 (1950)), certif. denied, 133 N.J. 432 (1993). Unless
the trial judge's findings are "so manifestly unsupported or
inconsistent with the competent, reasonably credible evidence" the
factual conclusions should not be disturbed. Id. at 524 (citing
Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 456 (1977)).
15 A-0561-15T3
Such a "manifest" lack of evidential support simply has not
been demonstrated by defendants on this appeal. The record is
replete with proof, including, among other things, the peculiar
circumstances in which Samuel's and Sara's wills were prepared and
executed, to support Judge Peterson's determinations.
We are equally satisfied that Judge Peterson faithfully and
fairly applied the governing principles of law in this case,
despite defendants' efforts on appeal to portray his rulings as
biased and flawed. Defendants complain that the judge mentioned
numerous times in his various rulings that the laws of intestacy
ordinarily provide for the equal distribution of the assets of a
parent among his or her surviving children, and that testators
commonly provide for equal distribution of their estates to each
of their surviving children. There is nothing inherently wrong
with the judge recognizing the legal consequences of intestacy,
see N.J.S.A. 3B:5-3, or that testators often distribute their
assets in equal shares. We do not believe that the judge operated
under some false assumption that competent parents are not entitled
under the law to make wills that unequally divide their assets to
their survivors. In fact, the judge's May 2015 oral opinion
expressly acknowledged that "a testator is not required to divide
his estate equally among his children" and "may even exclude one
or more" family members from his or her will.
16 A-0561-15T3
To be sure, the judge expressed skepticism about the
contentions that defendants presented in this case. But that
skepticism was justified by both the trial evidence, and what he
found to be the more credible testimony of plaintiffs and their
own witnesses. Although defendants advocated an opposing theory,
the judge had ample evidence to conclude that the parents here did
not want to disinherit any of their children. There is no
"objectively reasonable" basis to conclude that the trial
proceedings were unfair to defendants. Denike v. Cupo, 196 N.J.
502, 517 (2008); see also Liteky v. United States, 510 U.S. 540,
556, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474, 491 (1994) (observing
that "judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge") (Kennedy J., concurring).
In sum, the final judgment entered by the trial court was
founded upon a fair and meticulous assessment of the record and a
sound application of legal principles. As the trier of fact, the
judge simply found defendants and their witnesses less credible
than plaintiffs' witnesses, and he was entitled to do so. Rova
Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484
(1974).
17 A-0561-15T3
The judge specifically did not err in rejecting defendants'
belated post-trial proffer of the 1979 will of Samuel they claimed
to have only recently discovered in Usher's basement. Rather than
abruptly reject this proffer out of hand, the judge prudently
conducted an evidentiary hearing. He then concluded Usher and
Pearl had not diligently acted to attempt to find this 1979
document, which generally was not as favorable to their interests
(because it included a distribution to Lyle) as the wills they had
advocated to enforce at the trial. Although the purported 1979
will was found in Usher's residence, Pearl shared the
responsibility to locate it sooner because of her own duties as a
fiduciary. This is buttressed by the judge's earlier observation
at the conclusion of the trial, characterizing Pearl's conduct as
"gross carelessness and indifference to her fiduciary role."
We likewise agree with the judge's application of res judicata
principles in dismissing plaintiffs' attempt to probate the 1979
will. Having denied defendants' motion for the extraordinary
relief of a new trial stemming from their discovery of the 1979
will, the judge rightly barred defendants' subsequent attempt to
relitigate his decision. In re Estate of Gabrellian, 372 N.J.
Super. 432, 446 (App. Div. 2004).
Next, we reject defendants' argument that the judge erred in
ordering a $50,000 repayment of the estate funds paid to the
18 A-0561-15T3
charity. We are mindful that the court-appointed administrator
determined, post-judgment, that the charity was legitimate.
However, the administrator's determination of the charity's
legitimacy does not automatically mean that the judge erred in
ordering the funds that had been paid to the charity to be repaid.
In fact, the judge specified that any party in interest could, on
motion, petition the court to modify this aspect of the final
judgment, following the accounting of the charity. Defendants did
not file such a motion for relief. Even so, they still maintain,
without prejudice, the right to do so in the trial court, within
a reasonable time after our decision in this appeal.
Lastly, defendants have not persuaded us that the trial
court's awards of counsel fees, made pursuant to Rule 4:42-9(a)(3),
should be disturbed. Well-established case law governing counsel
fees instructs that such fee awards by trial courts should be
disturbed "only in the rarest of occasions, and then only because
of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J.
292, 317 (1995). The fees awarded by the trial judge here to the
prevailing parties were reasonable, and are not reflective of any
abuse of discretion.
As we have noted, this was a lengthy and hard-fought
litigation that consumed four years of pretrial discovery and over
twenty-five days of trial. The trial judge who oversaw that whole
19 A-0561-15T3
process was in a superior position to assess the nature and quality
of the legal services that counsel provided, and the reasonableness
of their charges. In addition, the fifty percent multiplier the
judge applied to the fee lodestar amount was an enhancement well
within the court's discretion. Rendine, supra, 191 N.J. 316-17;
In re Estate of Reisen, 313 N.J. Super. 623, 630 (Ch. Div. 1998).
The balance of defendants' arguments, to the extent we have
not already addressed them explicitly, lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
20 A-0561-15T3
IN THE MATTER OF THE ESTATE OF SAMUEL JOSEPH FEINER LYLE BROOCHIAN VS. USHER FEINER (190695, OCEAN COUNTY AND STATEWIDE)
Combined Opinion