IN THE MATTER OF THE ESTATE OF FELIX BRAUNIN THE MATTER OF THE PROBATE OF THE LOST WILL OF SYLVIA BRAUN(O-9701 AND P-3275, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3816-14T2
A-2861-15T2

IN THE MATTER OF THE ESTATE
OF FELIX BRAUN.
____________________________

IN THE MATTER OF THE PROBATE
OF THE LOST WILL OF SYLVIA
BRAUN.
____________________________

Argued telephonically October 4, 2017 –
Decided November 2, 2017

Before Judges Reisner, Gilson and Mayer.

On appeal from the Superior Court of New
Jersey, Chancery Division, Probate Part, Union
County, Docket Nos. O-9701 and P-3275.

Fredda Katcoff argued the cause for appellant
Richard Belott, Executor of the Estate of
Felix Braun, in A-3816-14 (Rabner Baumgart
Ben-Asher & Nirenberg, PC, attorneys; Ms.
Katcoff, on the briefs).

Steven B. Lieberman argued the cause for
appellant Estate of Courtney Braun Ganz in A-
2861-15.

Stacey Boretz argued the cause for respondents
Tamara Bernstein, the Estate of Sylvia Braun,
the Estate of Norma Bernstein, and Hadassah,
the Women's Zionist Organization of America,
Inc. (Lindabury, McCormick, Estabrook &
 Cooper, PC, attorneys; Peter M. Burke, on the
brief).

PER CURIAM

These two appeals, which we have consolidated for purposes

of this opinion, concern disputes over the respective estates of

Felix Braun and his wife Sylvia Braun.1 In A-3816-14, Richard

Belott, the executor of Felix's estate, appeals from a March 16,

2015 order, denying his application to enforce a purported 2014

settlement of Sylvia's elective share lawsuit against Felix's

estate.2 In the second appeal, A-2861-15, the executor of the

estate of the couple's daughter, Courtney Braun Ganz, appeals from

a November 16, 2015 order, entered after a plenary hearing,

admitting a copy of Sylvia's April 27, 2010 will to probate.

After reviewing each separate record, we agree with Judge

Camille M. Kenny that the purported 2014 settlement was not

enforceable because, on its face, the document indicated that the

parties had not yet reached agreement on material provisions. With

respect to the 2010 will, we find no basis to disturb Judge Kenny's

well-explained factual findings, based in large part on her

1
For ease of reference and intending no disrespect, we will refer
to the Braun family members by their first names.
2
After the trial court declined to enforce the settlement,
Sylvia's estate executrix withdrew the elective share complaint,
thus making the March 16, 2015 order ripe for appeal.

2 A-3816-14T2
evaluation of witness credibility. Based on the facts as Judge

Kenny found them to be, there was sufficient credible evidence to

support her conclusions, by clear and convincing evidence, that

Sylvia did not destroy the original 2010 will and that the copy

should be admitted to probate. Accordingly, we affirm the orders

on appeal in both cases.

I

We discuss each appeal separately, although they have some

undisputed facts in common. We begin with A-3816-14, the dispute

over Felix's estate. Some brief background is helpful to put the

issues in context. In 2007, Felix executed a will that left the

bulk of his estate in trust for the couple's daughter Courtney,

with the remainder to go to Courtney's daughter Molly after

Courtney's death. He left no specific bequests for Sylvia in his

will. However, the trust referenced in his will made provision

for Sylvia to the extent Felix's estate exceeded $3.5 million.

Felix died in February 2008. In September 2008, Sylvia filed a

lawsuit seeking an elective share of Felix's estate. Both Courtney

and the estate counterclaimed against Sylvia for allegedly

misappropriating Felix's assets. Thereafter, Courtney filed a

guardianship suit seeking to have Sylvia declared mentally

incapacitated.

3 A-3816-14T2
 The court eventually dismissed the guardianship suit, but the

litigation left Sylvia feeling alienated from her daughter. There

is no dispute that in 2010, Sylvia executed a new will that

specifically disinherited Courtney. Instead, the will left

Sylvia's entire estate in trust for the care of two disabled

relatives – her sister Norma Bernstein and Norma's daughter Tamara.

The will provided that after the deaths of Norma and Tamara, the

bulk of the trust assets would go to various religious charities.

From the trust remainder, Sylvia also left $2000 bequests to

Felix's grandchildren by a prior marriage and $10,000 to Sylvia's

granddaughter Molly.

Meanwhile, the litigation over Felix's estate continued. In

2011, the parties, all of whom were represented by counsel, went

to mediation. The mediation resulted in a written settlement

agreement signed by the parties' attorneys, including Courtney's

counsel. The 2011 agreement required Felix's estate to put about

$900,000 in a trust for Sylvia as income beneficiary, with the

remainder to go to Courtney, or to Molly if Courtney predeceased

Sylvia. Sylvia also agreed to change her will to leave one-third

of her net estate in trust to Courtney, with the remainder in

trust for Molly. Sylvia further agreed to give Courtney ownership

of a condominium in which Courtney was then residing, and to give

her title to a car and certain other items. However, Courtney

4 A-3816-14T2
refused to sign the agreement, and Sylvia filed a motion to enforce

the settlement.

After a two-day bench trial, Judge Lisa F. Chrystal issued a

written opinion on May 22, 2014, declining to enforce the 2011

settlement because she found that Courtney had not agreed to it.3

Judge Chrystal also found that schedules A and B of the settlement

were never finalized. Schedule A concerned the distribution of

jewelry and other personal property between Courtney and Sylvia

and contained hand-written notations, including "no" as to

Courtney getting a gold and ruby bracelet.

In early 2014, at a time when Sylvia was ninety years old and

in ill health, she engaged in settlement negotiations with

Courtney. Belott, who was also Sylvia's adversary in the

litigation, claimed that he nonetheless undertook to assist Sylvia

and Courtney to settle their differences, without directly

involving attorneys in the negotiations.4 The purported result of

that process was a document which Belott contended was typed by

3
Sylvia died on March 18, 2014, before the judge issued her
decision. However, the remaining parties asked Judge Chrystal to
decide the case, including making findings of fact.
4
There was some evidence that Sylvia consulted by phone with her
estate attorney, Ellen Krevsky, about a possible settlement.
However, as Krevsky certified in this proceeding and testified in
the later will contest, Sylvia never told her that she signed a
settlement agreement. Krevsky last spoke to Sylvia on March 18,
2014, the day Sylvia died.

5 A-3816-14T2
Courtney, with changes handwritten by Sylvia. In a verified

complaint to enforce the 2014 settlement, Belott asserted that

Sylvia signed the document in his presence on February 11, 2014.

However, her signature was not dated, nor was it witnessed by a

notary, and there was no line below her signature for a notary's

signature. By contrast, Belott's signature, dated February 11,

2014, and Courtney's signature, dated February 25, 2014, each

appear above a separate line on which is affixed the signature of

a notary.

In an oral opinion issued on March 13, 2015, Judge Kenny

found that the 2014 document on its face indicated that the parties

had failed to reach agreement on material terms. In the document,

the estate agreed to place $909,000 in trust for Sylvia. The

document then recited that on Sylvia's death, the trust remainder

would be turned over to an existing trust created by Felix's will,

or to a special needs trust for Courtney, "and/or" to a spendthrift

trust for Molly's benefit. The next sentence provided: "Terms to

be drafted by Attorneys." However, there was no provision

indicating agreement on how the attorneys would determine which

option to choose or what terms to include.

The next paragraph recited that Sylvia would put "between

$860,000-960,000" in a trust to generate income for her living

expenses. However, immediately above that sentence appears a

6 A-3816-14T2
handwritten notation "I cannot put 860,000-960,000" followed by

the initials SB. The next two sentences recite, "Said Trust will

pass to Courtney into a Special Needs Trust upon Sylvia's death

or to be agreed upon by the parties." (Emphasis added).5 The

emphasized language indicated that the parties had not firmly

agreed as to the disposition of the trust. There was also no

indication as to how Sylvia would make such a later agreement,

since it addressed a condition that would only occur upon her

death.

The next sentence continued the ambiguity: "In the alternate

[sic], a third Trust could be established to protect the money for

Molly as listed on Page 3 of this agreement." However, the

relevant paragraph on the third page provided "in the alternate

to the second Trust, or a portion of said Trust, Sylvia agrees to

allow for an immediate formation of a trust for Molly to protect

her from creditors." (Emphasis added). However, the last phrase

"Molly to protect her from creditors" was crossed out and replaced

with the handwritten words "Sylvia's protection." The initials

SB follow the handwriting. Thus, in one paragraph, Sylvia appeared

5
The approximately $900,000 to Courtney represented an enormous
increase over the amount she would have received under the 2011
settlement.

7 A-3816-14T2
to agree to create a trust for Molly, while in the next relevant

paragraph, she did not agree.

The last paragraph of the purported agreement addressed the

distribution of other estate assets. In that paragraph, Sylvia

agreed to allow her house to be searched for paperwork that might

lead to discovery of additional assets of Felix. The paragraph

continues: "She also agrees to return any items to the Estate or

what Courtney may wish, including those items listed on the 2011

agreement." (Emphasis added). However, after this typed

provision, the following words and initials appear in handwriting:

"If any assets are found Sylvia should share in them. SB"[.]

There was no provision defining what "any items" referred to or

how the parties would divide any further assets.

Additionally, the 2014 document acknowledged Courtney's

understanding that "a portion of Sylvia's Estate is intended to

fund a Special Needs Trust for Norma and Tamara Bernstein," and

that "a portion of Sylvia's Estate will be used to make donations

to several organizations of her own choosing." After the paragraph

concerning the trust for Norma and Tamara, Sylvia apparently

handwrote a note that "My sister and niece are to be taken care

of." However, although the trusts for Norma and Tamara were

central provisions in Sylvia's 2010 will, a concern repeated in

the handwritten note, the purported 2014 agreement did not address

8 A-3816-14T2
how Sylvia's estate would be able to fund those trusts after

providing Courtney with the enormous financial benefits required

by the settlement. Nor was there any specific term defining the

funding of the charitable bequests, which was the other central

concern in Sylvia's will.

As Courtney drafted it, the 2014 settlement would have

required Sylvia to place about $900,000 of her own money in a

trust that would go to Courtney on Sylvia's death, although

Sylvia's handwritten note indicated that she could not afford it.

Sylvia was also required to leave a minimum of an additional

$500,000 in a trust for Courtney. The terms of the latter trust

were not agreed on in the 2014 document but were to be "drafted

by attorneys." There was no specific agreement as to the remainder

beneficiary.

Our review of legal issues, including the interpretation of

settlements and other contracts, is de novo. Kaur v. Assured

Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009). We also

review de novo a trial court's decision that a matter can be

decided without a plenary hearing because there are no material

facts in dispute. See Davis v. Brickman Landscaping, 219 N.J.

395, 405 (2014); Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75

(App. Div. 1997).

9 A-3816-14T2
 Based on the record presented to us, we share Judge Kenny's

concern that the 2014 document, and the circumstances of its

alleged negotiation, bore indicia of undue influence and

overreaching. However, like Judge Kenny, we conclude it is

unnecessary to rest our decision on that basis. As clearly appears

from our discussion of the 2014 document, it is facially and

fatally deficient due to the parties' failure to agree on multiple

material provisions. At best, the purported settlement appears

to be a preliminary document containing concepts, to which the

parties might or might not be able to agree in the future if they

could flesh out the material terms. As occurred here, an agreement

is unenforceable "[w]here the parties do not agree to one or more

essential terms." Weichert Co. Realtors v. Ryan, 128 N.J. 427,

435 (1992); see also Morton v. 4 Orchard Land Trust, 180 N.J. 118,

120 (2004).

Consequently, Judge Kenny correctly determined that there was

no enforceable settlement. Because the document was facially

unenforceable, the record was hopelessly one-sided in the non-

moving party's favor, and there was no need to hold a plenary

hearing before declining to enforce the purported agreement. See

10 A-3816-14T2
Amatuzzo, supra, 305 N.J. Super. at 474-75. We affirm the order

on appeal.6

II

Next, we address A-2861-15, the dispute over probating a copy

of Sylvia's 2010 will. Our review of Judge Kenny's decision is

deferential, because it rests on her factual findings and results

from a testimonial hearing in which she had the opportunity to

gauge the credibility of the witnesses. See Rova Farms Resort,

Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). After

reviewing the trial record, we affirm substantially for the reasons

stated in her oral opinion issued on November 2, 2015, and in her

January 26, 2016 written opinion addressing Courtney's

reconsideration motion.7 We add these comments.

There was no dispute that Sylvia's attorney, Ellen Krevsky,

had prepared the April 27, 2010 will and that Sylvia had signed

the will and taken the original with her. The issue was whether

Sylvia had destroyed the original will. The proponents of the

6
Belott's argument that the 2014 document constituted a will is
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). His alternate contention, that the
document constituted a contract to make a will, fails for the same
reasons as his argument that it constituted a settlement of the
litigation.
7
As Judge Kenny noted in her January 26, 2016 opinion, Courtney
passed away on or about January 18, 2016, while the reconsideration
motion was pending.

11 A-3816-14T2
will produced evidence from which Judge Kenny found, by clear and

convincing evidence, that Sylvia did not intend to die intestate,

did not sign a will after 2010, did not intend to revoke the 2010

will, and did not destroy it.

We briefly summarize the most pertinent trial evidence. After

Sylvia's death in March 2014, her estranged daughter Courtney had

access to Sylvia's house for at least two months, until the court

appointed a neutral party, Elizabeth Locker, as temporary estate

administrator. According to Locker's testimony, Courtney had the

keys to Sylvia's house. Courtney told Locker that she had been

in the house multiple times and had searched for Sylvia's will,

including allegedly breaking into her late father's filing

cabinet. Courtney told Locker she did not find the will. Courtney

met Locker at the house to turn over the keys, but thereafter was

uncooperative with Locker's efforts to locate bank accounts and

other estate assets. She even directed her attorneys not to give

Locker a copy of Sylvia's death certificate.

Sylvia appeared to have been a hoarder, and her home was

cluttered with bags and boxes of papers. After a long search of

Sylvia's house, during which she noted evidence suggesting that

someone else had disturbed and moved various documents, Locker

found a plastic bag containing a copy of a will dated April 27,

2010. In that same bag, she found the original of a letter from

12 A-3816-14T2
Krevsky, dated 2014. However, Locker could not find the original

of the 2010 will.

Krevsky testified that between April 25, 2013 and March 18,

2014, Sylvia had several conversations with Krevsky about possibly

changing her will. However, Sylvia always told Krevsky, "I want

to make changes to my will, but I can't do it now." Sylvia never

told Krevsky that she destroyed the April 2010 will, and Krevsky

never prepared a new will for her. Krevsky further testified that

in all of their conversations, Sylvia never wavered in her

expressed desire to leave a testamentary special needs trust for

her sister and niece. She also never changed her expressed desire

to leave the remainder of the trust to the Hadassah Hospital.

Krevsky spoke to Sylvia for the last time on March 18, 2014.

Krevsky was unable to remember the precise conversation but

believed that "it was typical of the conversations that we'[d]

been having over the last several months, that she wanted to

finalize the settlement for the estate and she wanted to make

changes to her will, but she was going to contact me." Sylvia

died later that day.

Krevsky also recalled that, even in April 2013, when Sylvia

was about to have surgery and was concerned about the outcome, she

had Krevsky prepare a living will but told Krevsky that she had

not yet decided what she wanted to do about a new will. According

13 A-3816-14T2
to Krevsky, in all of their conversations, Sylvia never told her

that she had made a final decision about changes to her estate

plan, never asked Krevsky to prepare a new will for her, and never

told her that she had destroyed her 2010 will. Krevsky also

confirmed that it was not unusual for Sylvia to lose documents and

ask Krevsky to send her copies.

In her oral opinion, Judge Kenny found Krevsky to be a

credible witness. The judge found that, as late as the day of her

death, Sylvia communicated to Krevsky that she had not settled the

litigation over Felix's estate and had not decided on changes to

her will. The judge likewise found Locker to be a credible witness

in all respects. She also credited the testimony of Sylvia's

friend, Mary Fagan, who testified to Sylvia's strong expressions

of concern over helping her sister and niece. Fagan also testified

to Courtney's apparent lack of concern for her mother's welfare.

The judge found significant Fagan's testimony that Sylvia

constantly carried around a plastic bag of papers that seemed to

be important to her. The judge noted that during her search,

Locker found such a plastic bag that contained original papers

from Krevsky and a copy of the 2010 will.

The judge found that Belott was biased in Courtney's favor

and that his trial testimony about his alleged lack of knowledge

about the 2010 will, and concerning the alleged 2014 settlement

14 A-3816-14T2
agreement, was incredible. The judge also noted that Courtney

could have testified, either in court or by de bene esse

deposition, but did not do so. She assumed that, had Courtney

testified, she would have denied destroying the 2010 will.

Without directly finding that Courtney found and destroyed

the will, Judge Kenny noted evidence that someone other than Locker

searched through Sylvia's house and could have found Sylvia's

original will. More importantly, however, Judge Kenny found by

clear and convincing evidence that Sylvia had no intent to revoke

the 2010 will. She further found that Sylvia's critical concern

was to make adequate financial provisions for her sister and niece,

and the charities that had assisted her, and that Sylvia understood

the need to have a valid will. She found that Sylvia "would never

have wanted to die intestate and worry about what would happen to

Norma and Tammy" and the charities after her death.

The judge concluded that Sylvia would not have destroyed the

2010 will without first making another will, and that up to the

date of her death Sylvia never decided on the provisions of a

replacement will. Accordingly, the judge concluded that the will's

proponents had met their burden of proof by clear and convincing

evidence, and the copy of the 2010 will would be admitted to

probate.

15 A-3816-14T2
 Based on our review of the record, we find no basis to disturb

Judge Kenny's well-articulated evaluations of witness credibility,

or her factual findings. See Cesare v. Cesare, 154 N.J. 394, 411-

12 (1997); Rova Farms, supra, 65 N.J. at 483-84. We cannot agree

with appellant's argument that the judge applied the wrong burden

of proof. To the contrary, Judge Kenny appropriately held the

will's proponents to the clear and convincing evidence standard,

most recently articulated by this court in In re Estate of Ehrlich,

427 N.J. Super. 64, 75-76 (App. Div. 2012). Based on the judge's

factual findings, which are supported by substantial credible

evidence, the proponents clearly and convincingly satisfied their

proof burden.

Appellant contends that Judge Kenny should have applied the

following proof standard: "the proof necessary to rebut the

presumption of revocation must be sufficient to exclude every

possibility of a destruction of the will by the testator himself."

In re Davis's Will, 127 N.J. Eq. 55, 57 (E. & A. 1940). Our courts

have not cited that standard in a published opinion since the

1940s. See In re Estate of Jensen, 141 N.J. Eq. 222 (Prerog. Ct.

1947), aff'd o.b., 142 N.J. Eq. 242 (E. & A. 1948). In fact, when

articulated in Davis, supra, the court relied on the lack of clear

and convincing evidence and "[did] not find it necessary to rely

upon [the legal principle] as relates to the exclusion of every

16 A-3816-14T2
possibility of destruction by the testatrix." Id. at 60.

Moreover, the standard seems inconsistent with recent legislation

aimed at implementing a decedent's testamentary intent and making

it easier to probate an informal will and avoid intestacy. See

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

However, even if we apply the standard, Judge Kenny found

clear and convincing evidence that Sylvia understood that she

needed a will, would never have wanted to die intestate, would

never have left her sister and niece unprovided for, and had no

intent to revoke her 2010 will. Added to that is clear and

convincing evidence that Courtney had access to the house for

months, admitted searching for the will, and had a strong financial

motive to destroy the original will if she found it. In the

context of this case, there was clear and convincing evidence

sufficient to "exclude every possibility" that Sylvia destroyed

her 2010 will.

Based on factual assertions the trial judge did not credit,

appellant further contends that Judge Kenny should have

"reconcile[ed]" the 2010 will with the purported 2014 settlement

and other "subsequent writings." The argument is contrary to the

facts found by Judge Kenny - including her finding that Sylvia

never decided on the terms of a new will - and is without sufficient

17 A-3816-14T2
merit to warrant further discussion. R. 2:11-3(e)(1)(E). We

affirm the November 16, 2015 order on appeal.

Affirmed.

18 A-3816-14T2