NOT FOR PUBLICATION WITHOUT THE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-5550-18T1
STEVEN E. HAAS,
Individually and as Executor
Under the Last Will and
Testament of Anita R. Haas,
Deceased,
Plaintiff-Respondent/
Cross-Appellant,
v.
JEFFREY L. HAAS,
Defendant-Appellant/
Cross-Respondent.
______________________________
Argued telephonically May 27, 2020 –
Decided June 24, 2020
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Probate Part, Middlesex County,
Docket No. 264140.
Francis Joseph Ballak, Jr. argued the cause for
appellant/cross- respondent (Goldenberg, Mackler,
Sayegh, et al., (Francis Joseph Ballak, Jr., on the
briefs).
Ronald J. Busch argued the cause for respondent/cross-
appellant (Busch and Busch, LLP, attorneys; Ronald J.
Busch, on the briefs).
PER CURIAM
Defendant Jeffrey L. Haas 1 appeals from an order entered by the Chancery
Division, Probate Part, on July 8, 2019, which overruled his caveat to the last
will and testament of Anita R. Haas and admitted the will to probate. The order
also awarded fees to the attorney for Steven E. Haas to be paid by the estate, but
denied fees requested by Jeffrey.
Plaintiff Steven cross-appeals and seeks to have the award of counsel fees
paid by Jeffrey individually and not the estate. We have reviewed the arguments
in light of the record and applicable law and affirm.
I.
We discern the following facts from the record. Anita died testate on
February 5, 2019. She had two children, Steven and Jeffrey. Her last will and
testament, executed on April 19, 2018, directed the executor to pay her debt s
and funeral expenses, and left the residuary estate to her husband, Lawrence
1
Inasmuch as all parties bear the same surname, we use their first names for
clarity, meaning no familiarity or disrespect.
A-5550-18T1
2
Haas. The will states that in the event Lawrence predeceases her, then her
residuary estate would be left to Steven and Jeffrey in equal shares.
Lawrence died in August 2018. After Anita's subsequent death, Steven,
who was named executor, submitted her will to probate. After Jeffrey filed a
caveat to the will, Steven filed a complaint and order to show cause (OTSC) in
a summary action to strike the caveat and admit the will to probate. Jeffrey filed
a counterclaim asserting the will was procured by undue influence. He
contended that Steven lived with their parents for eighteen years; was financially
dependent on them; and incapable of serving as executor.
According to Jeffrey, he was named as the executor of his mother's estate
in her prior wills and both of his parents had significant health issues. He alleged
Anita changed her will and named Steven as executor in April 2018 because
Steven exerted undue influence over his parents. Jeffrey requested discovery,
including production of his mother's prior wills, to support his undue influence
claim, and a plenary hearing. He did not challenge the disposition of the estate.
On June 14, 2019, in an oral decision, the probate judge dismissed the
caveat; admitted Anita's April 19, 2018 will to probate; and named Steven as
executor of the estate. In ruling on the OTSC, the judge noted there was no
evidence that Steven could not properly administer the estate. There also was
A-5550-18T1
3
no evidence that Anita named Jeffrey as her executor under a prior will, or any
proof to support the claim that Steven exerted undue influence in being named
as executor. The judge awarded counsel fees in favor of Steven and against the
estate.
On June 21, 2019, Steven's counsel submitted a certification of services
in application for counsel fees. On July 8, 2019, the judge entered an order
memorializing his June 14, 2019 decision and awarding $7895 for legal services
to Steven's counsel, Ronald J. Busch, Esq. No attorney's fees were awarded to
Backes and Backes, LLC, former counsel for Jeffrey. The judge ordered Mr.
Busch's fee to be paid by the estate.
On appeal, Jeffrey argues: (1) the judge erred in granting the relief sought
in the OTSC without permitting discovery or conducting a plenary hearing; and
(2) the judge abused his discretion in awarding fees to Steven's attorney and
denying fees to his former counsel.
In his cross-appeal, Steven argues that the award of counsel fees to Mr.
Busch was proper but should have been assessed against Jeffrey individually
and not against the estate.
A-5550-18T1
4
II.
Steven commenced this action in accordance with Rule 4:83-1 which
provides, in part: "[u]nless otherwise specified, all actions in the Superior
Court, Chancery Division, Probate Part, shall be brought in a summary manne r
by the filing of a complaint and issuance of an [OTSC] pursuant to R. 4:67."
See also N.J.S.A. 3B:2-4. Under Rule 4:67-5, the trial court must try the case
on the return date of the OTSC or on a "short day" as it fixes. The trial court is
compelled to hold a hearing if "there may be a genuine issue as to a material
fact," at which the court "shall hear the evidence as to those matters which may
be genuinely in issue, and render final judgment." Ibid. But, if "the affidavits
show palpably that there is no genuine issue as to any material fact, the court
may try the action on the pleadings and affidavits, and render final judgment
thereon." Ibid.
Here, the judge's review of the pleadings led to his conclusion there was
"no reason" to change the executor. Under the supervision of the Middlesex
County Surrogate, the judge concluded that Steven was able to administer the
estate, which was not "complex," for the benefit of the heirs. The judge went
on to state there was nothing "wrong" with the parents changing the
A-5550-18T1
5
administration of the will to the son "that stays at home and takes care of them
. . . and provides comfort for them . . . ."
Our review of summary actions conducted pursuant to Rule 4:67 applies
the usual standard for civil cases. See e.g., O'Connell v. N.J. Mfrs. Ins. Co., 306
N.J. Super. 166, 172-73 (App. Div. 1997) (applying a substantial-credible-
evidence standard in reviewing a decision from a summary action), appeal
dismissed, 157 N.J. 537 (1998). "Findings by the trial judge are considered
binding on appeal when supported by adequate, substantial and credible
evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974). When a court makes findings of fact based on documentary evidence
alone, however, no special deference is warranted. See Clowes v. Terminix Int'l
Inc., 109 N.J. 575, 587 (1988); Jock v. Zoning Bd. of Adjustment, 371 N.J.
Super. 547, 554 (App. Div. 2004), rev'd on other grounds, 184 N.J. 562 (2005).
And, "[o]ur review of a trial judge's legal conclusions is de novo." Walid v.
Yolanda for Irene Couture, Inc., 425 N.J. Super. 171, 179-80 (App. Div. 2012).
Jeffrey contends he presented sufficient evidence that Anita's will was the
product of undue influence to warrant discovery and a plenary hearing. Our
courts have long recognized that undue influence is "mental, moral or physical"
exertion sufficient to preclude the testator's exercise of free will, by preventing
A-5550-18T1
6
them "from following the dictates of [their] own mind," and succumbing to "the
domination and influence of another," in dividing their estate. In re Estate of
Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943); see also Haynes v. First Nat'l
State Bank of N.J., 87 N.J. 163, 176 (1981).
The shifting burdens of proving undue influence were explained by our
Supreme Court:
Ordinarily, the burden of proving undue influence falls
on the will contestant. Nevertheless, we have long held
that if the will benefits one who stood in a confidential
relationship to the testator and if there are additional
"suspicious" circumstances, the burden shifts to the
party who stood in that relationship to the testator. In
re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). In
general, there is a confidential relationship if the
testator, "by reason of . . . 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]." In re
[Estate of] Hooper, 9 N.J. 280, 282 (1952). Suspicious
circumstances, for purposes of this burden shifting,
need only be slight.
When there is a confidential relationship coupled with
suspicious circumstances, undue influence is presumed
and the burden of proof shifts to the will proponent to
overcome the presumption.
[In re Estate of Stockdale, 196 N.J. 275, 303 (2008)
(alterations in original) (internal citations omitted).]
A-5550-18T1
7
Based upon that standard, Jeffrey's submissions to the probate judge were
insufficient to establish his claim of Steven's undue influence over Anita at the
time the will was executed. See In re Livingston's Will, 5 N.J. 65, 76 (1950)
("Undue influence, to vitiate a will, must be operative at the time the will is
executed."). In his verified answer and counterclaim, Jeffrey asserted that for
eighteen years, Steven "labored under condition of mental ill-being[;]" was
"unable to work or live independently;" and was "forced" to live with their
parents for the past eighteen years. Jeffrey also claimed his parents advised him
"that he was the executor nominated in their [w]ills." He also averred that
Steven "is unable to manage even his own affairs" but admitted he is "articulate."
In his verified complaint, Steven attested at the time of the preparation
and execution of her will, Anita "was clear in her intention" to appoint him as
her executor. Steven also stated that he qualified as executor for his father's
estate "and has properly served in that position." Steven verified that both
parents, "properly and knowingly," and "without any undue influence,"
appointed him to serve as executor.
Although the judge did not provide an extended analysis of this issue, we
are satisfied he properly found Jeffrey failed to establish undue influence.
Jeffrey's unsupported allegations are simply based on his belief. Likewise,
A-5550-18T1
8
Jeffrey's allegations do not identify specific time periods and no medical
evidence was produced in respect of his claims of undue influence as to Anita
or Steven's alleged inability to serve as executor. Moreover, Jeffrey was named
as the alternate executor and the residuary estate was left to both sons in equal
shares.
Jeffrey's proffer also does not establish a confidential relationship
between Steven and Anita. It is not enough to demonstrate that a beneficiary
who stood to benefit from the will had a close relationship with the decedent.
In re Will of Liebl, 260 N.J. Super. 519, 528-29 (App. Div. 1992). Rather, there
must be some showing that the decedent was particularly vulnerable to undue
influence. Ibid. No evidence was presented by Jeffrey that Anita was mentally
incompetent; therefore, no presumption of undue influence arises. See id. at
529. Moreover, the proffer does not establish suspicious circumstances
surrounding the preparation and execution of the April 19, 2018 will.
"Summary actions are, by definition, short, concise, and immediate, and
further, are 'designed to accomplish the salutary purpose of swiftly and
effectively disposing of matters which lend themselves to summary treatment.'"
MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534,
551 (App. Div. 2005) (quoting Depos v. Depos, 307 N.J. Super. 396, 399 (Ch.
A-5550-18T1
9
Div. 1997)). Inasmuch as a party in a summary action proceeding is not entitled
to favorable inferences such as those afforded to the respondent in a summary
judgment motion, O'Connell, 306 N.J. Super. at 172, the judge correctly found
Jeffrey raised no genuine issue of material fact to warrant further proceedings.
Jeffrey produced no proof that Anita lacked requisite testamentary
capacity to execute the 2018 will. In considering the issue, courts must consider
if the decedent was able to "comprehend the property [she was] about to dispose
of; the natural objects of [her] bounty; the meaning of the business in which [she
was] engaged; the relation of each of these factors to the others, and the
distribution that is made by the will." Livingston's Will, 5 N.J. at 73. "[A]s a
general principle, the law requires only a very low degree of mental capacity for
one executing a will." Liebl, 260 N.J. Super. at 524 (quoting In re Will of
Rasnick, 77 N.J. Super. 380 394 (Cty. Ct. 1962)). "[T]he burden of establishing
a lack of testamentary capacity is upon the one who challenges its existence
. . . . [and] must be [proven] by clear and convincing evidence." In re Estate of
Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952).
Jeffrey's claim that "it is inconceivable" that Anita "would voluntarily
name [Steven] [as] executor in lieu of counterclaimant" does not establish her
testamentary capacity in April 2018. Again, Jeffrey's proffer does not refute
A-5550-18T1
10
Steven's assertion Anita appointed him as her executor without any undue
influence, or that he is capable of administering the estate.
We conclude Jeffrey's proofs were insufficient to establish that there was
a genuine issue as to any material fact. R. 4:67-5. Therefore, the probate judge
correctly struck the caveat and admitted the will to probate.
III.
We next address Jeffrey's contention that the judge abused his discretion
in awarding counsel fees to Steven's attorneys to be paid from the estate and
denying fees to his attorney. According to Jeffrey, his pleadings were
persuasive and justified discovery and a plenary hearing. He claims the judge
did not give sufficient reasons for the award.
When authorized, "fee determinations by trial courts will be disturbed
only on the rarest of occasions, and then only because of a clear abuse of
discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)
(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The award of counsel
fees is done at the discretion of the trial court, and is awarded substantial
deference. In re Probate of Alleged Will of Hughes, 244 N.J. Super. 322, 328
(App. Div. 1990).
A-5550-18T1
11
"New Jersey follows the American Rule, which requires that parties bear
their own counsel fees except in the few situations specifically permitted by
statute or by our Supreme Court." In re Farnkopf, 363 N.J. Super. 382, 395
(App. Div. 2003). Probate actions are one such instance where counsel fees may
be awarded. Ibid. Indeed, Rule 4:42-9(a)(3) permits the court to award counsel
fees in probate actions to be paid out of the estate if the contestant had
reasonable cause for contesting the validity of the will.
To satisfy the "reasonable cause" requirement, petitioners seeking "an
award of counsel fees must provide the court with 'a factual background
reasonably justifying the inquiry as to the testamentary sufficiency of the
instrument by the legal process.'" In re Probate of Alleged Will & Codicil of
Macool, 416 N.J. Super. 298, 313 (App. Div. 2010) (quoting In re Caruso, 18
N.J. 26, 35 (1955)). In order to award counsel fees be paid out of the estate,
there must . . . be a showing that the validity of the will
was not only questionable but there was reasonable
cause for actually contesting it, related to the practical
effect of a successful contest, the size of the estate and
the probable expenses of litigation, and the reasonably
anticipated result.
[Caruso, 18 N.J. at 33 (internal quotation marks and
emphasis omitted).]
A-5550-18T1
12
Additionally, the trial judge must "exercise . . . sound discretion to prevent
misuse of the judicial process and the mulcting of the estate" in awarding
counsel fees in probate. Id. at 36. Bearing that in mind, "[e]xcept in a weak or
meretricious case, courts will normally allow counsel fees to both proponent and
contestant in a will dispute." Macool, 416 N.J. Super. at 313 (alteration in
original) (quoting In re Reisdorf, 80 N.J. 319, 326 (1979)).
Here, the judge found that Steven demonstrated reasonable cause
warranting the award of counsel fees. The judge determined Jeffrey's challenge
to Anita's will was completely dispelled by the record.
We perceive no abuse of discretion in the judge's award of counsel fees.
From our independent review of the record, we are convinced that the judge's
determination was reasonable. The judge's finding that, at the time of the filing
of the caveat and complaint, Jeffrey had no reasonable basis to challenge the
will is fully supported by the record and entitled to our deference. Therefore,
the judge did not abuse his discretion by denying Jeffrey's application for the
award of attorney's fees.
IV.
We next address Steven's cross-claim. Steven argues that the fees
awarded should be paid by Jeffrey directly and not the estate. Steven further
A-5550-18T1
13
contends that the estate should not be liable for fees because in essence, each of
the beneficiaries would be paying one-half of those fees.
Rule 4:42-9(a)(3) provides:
[i]n a probate action, if probate is refused, the court may
make an allowance to be paid out of the estate of the
decedent. If probate is granted, and it shall appear that
the contestant had reasonable cause for contesting the
validity of the will or codicil, the court may make an
allowance to the proponent and the contestant, to be
paid out of the estate.
In awarding fees in a probate action, the trial judge must exercise "sound
discretion to prevent misuse of the judicial process." Caruso, 18 N.J. at 33. The
judge may award fees to the attorney for the executor out of estate funds. In re
Estate of Seabrook, 127 N.J. Super. 135, 142 (App. Div. 1974); see also In re
Estate of Kelley, 126 N.J. Super. 376, 378 (App. Div. 1974).
There is no basis for modification of the order awarding counsel fees to
be paid by the estate on these grounds. The judge's determination does not
constitute an abuse of discretion or error. We are satisfied the judge's ruling on
counsel fees is adequately supported by the credible evidence contained in the
record.
Affirmed.
A-5550-18T1
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STEVEN E. HAAS VS. JEFFREY L. HAAS (264140, MIDDLESEX COUNTY AND STATEWIDE)
Combined Opinion