NOT FOR PUBLICATION WITHOUT THE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-2619-20
IN THE MATTER OF THE
ESTATE OF MARK A. RAYNER,
Deceased.
_____________________________
Argued January 11, 2023 – Decided November 9, 2023
Before Judges Accurso, Firko, and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No. P-
000454-19.
William Adam Friedman argued the cause for appellant
Carol Petty (Gaeta Law Firm, LLC, attorneys; Anthony
N. Gaeta and William Adam Friedman, on the briefs).
Allen S. Kaplan argued the cause for respondent
Colleen Kelly Rayner (Kaplan & Bookbinder,
attorneys; Allen S. Kaplan, on the brief).
The opinion of the court was delivered by
FIRKO, J.A.D.
In this will dispute, plaintiff Carol Petty, the sister of decedent Mark A.
Rayner, appeals from three orders granting summary judgment in favor of
defendant Colleen Kelly-Rayner, decedent's widow. The orders awarded
defendant the intestate estate, which comprises decedent's entire estate, under
the Pre-Marital Will Statute, N.J.S.A. 3B:5-15, and appointed defendant as
administratrix. In addition, the court found the Omitted Children Statute,
N.J.S.A. 3B:5-16, would apply to decedent's two after-adopted children in the
event defendant was not the surviving spouse under the Pre-Marital Will Statute,
barring recovery to plaintiff under either statute. Plaintiff also appeals from an
order denying her application for counsel fees and costs.
Because we conclude there are genuine issues of material fact that
precluded summary judgment as a matter of law under Rule 4:46-2(c), we
reverse the orders granting summary judgment to defendant and remand for a
plenary hearing. We also vacate and reverse the order denying plaintiff's
application for counsel fees and costs.
I.
Viewed in the light most favorable to plaintiff, Templo Fuente De Vida
Corporation v. National Union Fire Insurance Company of Pittsburgh, 224 N.J.
189, 199 (2016), the pertinent facts are as follows. On January 31, 1989,
decedent executed a will, which is the subject of the matter under review. He
named plaintiff the executrix and sole heir. At the time, plaintiff was decedent's
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only living relative. In 2004, plaintiff and decedent "had a falling out" that
lasted for about ten years. The dispute centered on distribution of monies from
their late uncle's estate and decedent, the executor, notifying plaintiff she w ould
not receive a distribution because of debt she owed him and their uncle's estate.
Decedent advised plaintiff she did not deserve any sha re of their uncle's
inheritance. In 2004, decedent threatened to sue plaintiff for monies she owed
him. In response, plaintiff conveyed a rental property located in Tuckerton or
Little Egg Harbor, 1 a major asset in decedent's estate, to him because plaintiff
claimed she could not afford to fight him.
In 2003, decedent met defendant. They married four years later in 2007—
eighteen years after decedent executed his will—and lived at decedent's
Farmingdale house, which was his pre-marital property and remained titled in
his sole name during the marriage until his death. After marrying, decedent and
defendant adopted a set of twins who were born in September 2009 and have
special needs. Decedent never revised his will after getting married and
adopting the twins. Defendant's alcoholism led to marital problems between
plaintiff and defendant.
1
The record is unclear as to whether the property is located in Tuckerton or
Little Egg Harbor. This is not germane to our decision.
A-2619-20
3
On March 9, 2014, decedent and plaintiff apparently mended their
relationship as evidenced in an email decedent sent to plaintiff. In his March 9,
2014 email to plaintiff, decedent stated he planned to work "[eight] more years"
and retire at "sixty-four-years old." He added:
Farmingdale house will be sold for about 500K.
Tuckerton house will be sold for about 489K.
Dump the Condo for about 150K.
I am trying to sell the Canada house now but the
appraisal came in low at 530K.
I have a buyer for Pelican Bay, SC for my lot but not
sure if that will get anything more th[a]n 90K. That
investment cost me about 150K lost.
Then I will move to Delaware . . . Colleen and kids will
not come there so that will be the end of the Rayner
marriage . . .
On May 13, 2014, decedent sent plaintiff another email stating:
I make investments so I [c]an retire. . . . I will sell the
Tuckerton property for 500K and pay off my house here
in Farmingdale. I will leave you the condo for $125K
FOR YOU[R] RETIREMENT. You will not be left out
. . . you['re] my sister . . . blood. I will be fair. Colleen
known my wishes . . . Colleen gets the Farmingdale
[m]ansion. 500K in [v]alue. I will not have my
families fight over money. You are Executor at this
point. You screw this up you will be without anything.
Take what I offer you and be happy, otherwise I will
A-2619-20
4
give the Rayner Estate to the church. All of it. 1.6
million [d]ollars.
The record does not indicate if decedent ever sold the Tuckerton property and
paid off the mortgage on the Farmingdale property and is devoid of any evidence
as to the values of these properties net of outstanding mortgages and liabilities .
In February 2015, defendant obtained a temporary restraining order
(TRO) against decedent and moved out of the Farmingdale home and into her
sister's basement with the children. Defendant alleged in the TRO complaint
that decedent threatened her life and the children's lives while he was
intoxicated. She described his behavior as "erratic," and she was fearful because
he kept guns in the house. A few days later, defendant agreed to dismiss the
TRO and enter into a civil restraining order that mandated he stop drinking,
undergo treatment, and have supervised visitation with the children. Defendant
and the children continued to live with her sister and decedent remained in the
Farmingdale home.
Shortly thereafter, decedent emailed plaintiff about defendant and the
children moving out of the marital home and the TRO she obtained against him.
Decedent explained, "I think [defendant] is still pissed because she is not in my
will, no[ne] of them are. I believe the Rayner money stays with the Rayners.
One day I will tell [you] where everything is so you can come and get what is
A-2619-20
5
yours." Plaintiff tried to talk to decedent about his email, but he answered, "I
don't wish to talk about it right now. Still trying to get kids and [defendant]
back home, but I think she has left for good."
On May 14, 2015, decedent emailed plaintiff about defendant "playing
this game" and may never come home. Defendant explained it was not
"practical" for him at the age of fifty-seven to "hold 270K mortgage on a 500K
house at $2[,]800 a month." He added defendant "will try to come after the
Rayner estate but nothing is in her name, and she is not in the will so she loses."
Decedent told plaintiff, "I will try to protect our assets and you are still sole
beneficiary." He later added, "The real estate is safe for now. It's all for you."
And, decedent wrote to plaintiff, "[i]t [ ']s my final wishes in life and [defendant]
cannot change it." Following their separation, decedent "made it clea r" to
plaintiff and his close friends that the marriage was over and defendant wasn't
interested in reconciling. Decedent also informed plaintiff about his
unemployed status and that he needed money and insurance for his children.
In June 2015, decedent got a job with Future Technologies, Inc. Decedent
named defendant and the children as the beneficiaries on his employer provided
life insurance policy and defendant as the sole beneficiary on his 401(k) plan,
which were perquisites of his employment. Plaintiff and decedent continued to
A-2619-20
6
communicate through emails without mention of his estate, and periodically he
would express his love for his children and hoped for a reconciliation with
defendant. In August 2015, according to defendant, she filed a complaint for
divorce as "a tough-love tactic" in the hopes decedent would get "scared" and
undergo counseling, but he ultimately refused to do so. On September 13, 2015,
decedent sent plaintiff an email stating "[n]ow she (Colleen) is dragging me back
to court for more money, so I am going to jail because I will not pay anymore
so the Rayner estate is in your hand[s]."
On September 27, 2015, decedent sent plaintiff an email stating: "I was
served divorce papers this past Friday . . . good thing is the papers say she
(Colleen) can come after what was acquire[d] during marriage. I own all stuff
before marriage and hoping that saves me." On November 27, 2015, decedent
emailed plaintiff, "my wife is using my kids as hostages, and she knows I would
do anything to see my kids. I will try to protect our assets and you are still sole
beneficiary."
On December 19, 2015, decedent expressed his final wishes to plaintiff in
an email: "I wish I had happy news for you but I don't. The real estate is safe
for now. It's all for you. Of course Colleen is pissed about that but she cannot
do anything. It's my final wishes in life and she cannot change it."
A-2619-20
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On December 12, 2016, defendant dismissed her divorce complaint. The
dismissal order indicated the "parties are reconciling" and the matter is
"dismissed without prejudice." Between 2016 through 2019, the parties filed
joint marital income tax returns. In 2017, decedent sent defendant an email
stating in part, "I love you Colleen and our wonderful children . . . . They will
be [heirs] to my estate. My kids will always be protected."
By 2018, plaintiff's and decedent's relationship was strained. In a
February 18, 2016 email from decedent to plaintiff, he mentioned "She (Colleen)
was afraid I was going to call the IRS on her and I did threaten to do so because
I was mad. I would never hurt anyone, I love my wife and kids."
In October 2018, plaintiff informed decedent that she would no longer
communicate with him until he got "serious" about getting help for his alcohol
abuse and taking care of himself. In February 2019, decedent emailed plaintiff,
even though they were not on speaking terms, to inform her that he was flying
to Florida for the Super Bowl. He stated, "If anything happens to me you must
come home and handle the Rayner estate. [One] million dollars at your
fingertips." Plaintiff lives in Wyoming.
A month before his death, decedent and defendant entere d into a written
agreement stating they were married but living separate and apart. The
A-2619-20
8
agreement acknowledged defendant had custody of the children and that her aunt
was purchasing a home for defendant as a "gift" because defendant and the
children had been living in her sister's basement, and defendant required
financial assistance from her aunt.
At her deposition, defendant testified her aunt was a co -signor on the
mortgage and was not "handing" her a home. Defendant intended to move into
the new home with the children. The agreement provided decedent waived any
interest in the home purchased by defendant's aunt and agreed the home "shall
not be subject to equitable distribution in the event of the divorce or dissolution
of the parties." Defendant also agreed decedent could visit the children with her
permission if he remained alcohol and drug free.
Defendant regularly brought the children to visit decedent, performed
household chores, brought groceries, and prepared meals for him until she found
him dead in his home on June 3, 2019. At the time of his death, defendant and
the children were still named as beneficiaries on his employer provided life
insurance policy and defendant was still named the sole beneficiary of his 401(k)
plan.
On August 9, 2019, defendant's attorney sent a letter to plaintiff's attorney
itemizing the probate assets of the estate as follows:
A-2619-20
9
• Farmingdale house - $516,000 (based on 2019
tax assessment, which is 100%)
• Less outstanding mortgage balance of $278,000
• 660 Green Street - $391,800
• Green truck – zero value
• Pelican Bay, SC – own 7% - Loss
• Interest in Canada property - $3,000 to $15,000
• Bank account - $37,000
The record does not indicate any documentation was provided with the letter to
support the values stated.
As the surviving spouse, defendant filed a caveat objecting to the probate
of decedent's will and for relief under the Pre-Marital Will Statute. In response,
plaintiff filed a verified complaint and order to show cause (OTSC) in the
Chancery Division, Probate Part, seeking to vacate defendant's caveat, declare
the Pre-Marital Will Statute and defendant's elective share under N.J.S.A. 3B:8-
1 inapplicable, appoint plaintiff executrix, and for an award of counsel fees.
Defendant filed a verified answer and counterclaim seeking her intestate share
under the Pre-Marital Will Statute, plaintiff's removal as the nominated
executrix, appointment of herself as executrix, and for an award of counsel fees
and costs.
A-2619-20
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The court denied plaintiff's OTSC, allowed the parties to choose a
temporary administrator, and granted defendant leave to re-file her
counterclaim. In a subsequent case management order, the court appointed an
attorney for the children after determining defendant's interests could be adverse
to theirs and ordered mediation. On behalf of the children, their counsel filed
an answer and counterclaim seeking distribution of the entire estate to them as
intestate heirs in the event defendant's claim to her intestate share was denied
by the court and for the establishment of special needs trusts for each child. The
mediation was unsuccessful.
The parties moved for summary judgment and both motions were denied
without prejudice as premature pending discovery and an accounting of the non-
probate assets defendant received from decedent. The parties engaged in
discovery and conducted depositions. Plaintiff propounded interrogatories upon
defendant. One interrogatory required defendant to "[s]tate whether the
[d]ecedent ever expressed to [the defendant] that he intended to leave his entire
Estate to the [p]laintiff." The response was "no." At her deposition, defendant
was asked a similar question and provided the same answer but later on in the
deposition, changed her answer:
Q. I'm going to ask you the question one more time:
A-2619-20
11
Did [defendant] ever communicate to you that he
was going to leave his estate to [plaintiff]?
A. Not that I can recall in any serious conversation.
Q. Okay. Please tell me about the conversations that
you did not consider serious. What did he say
regarding leaving his estate [to] [plaintiff]?
A. If he was drinking he would say I'm going to
leave everything to my friends.
Q. Okay. [Plaintiff], did he say [plaintiff]?
A. I guess so he did. I don't understand. I don't
understand what you're –
Q. It's a simple question. You testified initially that
– I asked you a very simple question which was:
Did [defendant] ever communicate to you that he
intended to leave his estate to [plaintiff]? You
said I cannot recall. I then admonished you and
reminded you that you're under oath to tell the
truth. I've taken not[e] that you are wearing a
mask that says "be not afraid" which indicates a
biblical reference. So that tells me that you're a
person who takes oaths and religion seriously and
you have sworn an oath to tell the truth. You then
testified that – you have basically said not that
you recall, but he did not in any conversation in
a serious way. So that implies that he did at some
point make a statement that he was leaving his
estate to his sister. And I'm asking you what he
said during those conversations which you have
characterized as not being serious. You then
testified that he said he'd leave it to his friends
which isn't leaving it to [plaintiff]. So there are
A-2619-20
12
a number of contradictions that I'm offering you
the chance under oath to correct. . . .
A. Okay. [Defendant] would always say that he's
rich and he would say, if we were arguing or
having a fight, I'll leave everything to [plaintiff].
I'll leave everything to my friends. You'll have
nothing. We never sat down and looked at a piece
of paper and said, this is what's going to happen.
This is what I have, this is what I don't have, ever.
Q. But he did say at some point that he would leave
his estate to [plaintiff], correct?
A. Yes.
After obtaining information about the non-probate assets, the parties
renewed their motions. In her initial certification in support of summary
judgment, defendant stated decedent had an "unstable" relationship with
plaintiff, and she was not actively involved in his life. Defendant also certified
she never executed any documents waiving her spousal inheritance rights , as
alleged by plaintiff.
In support of her renewed summary judgment motion, defendant certified
she received $174,667.18, 2 inclusive of life insurance proceeds, interest, and the
401(k) plan. From that sum, defendant had to pay funeral expenses of $12,614;
2
The record also shows the amount was $175,314.71, and this is the amount
cited by the court in its opinion.
A-2619-20
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repair the roof on the former marital home at a cost of $19,500; pay property tax
arrearages on the estate's real properties in the amount of $10,156; and pay
decedent's outstanding debts on the former marital home totaling $7,304.
Defendant also certified she lost $800 per month in child support
payments from decedent; now pays $2,041 per month for COBRA medical
insurance; and $100 per month for car insurance—expenses that decedent used
to pay. Defendant's monthly out-of-pocket loss is $2,941. Defendant projected
she will incur at least $317,628 in expenses for the children until they reach
eighteen years of age on account of decedent's demise.
The parties also dispute the value of the probate estate. Plaintiff claims
the estate is worth $850,000, and defendant claims the estate is worth only
$350,000. No real estate appraisals were included in the record to substantiate
these values, and no inheritance tax return was provided.
Plaintiff countered defendant was estranged from decedent and contested
a reconciliation occurred in December 2016 when defendant dismissed her
divorce complaint. Plaintiff submitted a certification stating decedent "made it
clear" to her that he and defendant "were never getting back together," and
defendant told him she "had no intention of ever reconciling." According to
plaintiff, decedent harbored "animus" towards defendant. Decedent told
A-2619-20
14
plaintiff that "he had not gone through with the divorce because it would h ave
been extremely costly," and he had "serious concerns" defendant would spend
"anything she received from the settlement."
Regarding the filing of joint tax returns, plaintiff certified decedent told
her it was in his and defendant's "mutual interest to take the deduction for the
children and the business losses" they reported and had "nothing to do with an
eventual reconciliation." Plaintiff certified "it was no surprise" decedent never
prepared a new will after he was married, and he always "made clear to plaintiff"
that he intended to "preserve and leave" as much of the "Rayner Estate" to her
as he possibly could. Plaintiff certified decedent felt "strongly" about what had
been in the "original Rayner family" should be left to "remaining blood kin,"
which is something their "father emphasized" to them. According to plaintiff,
decedent "knew" about his will, "hadn't forgotten about it," and relied upon it to
ensure plaintiff received as much of his Estate as possible. Plaintiff certified
this was decedent's "dying wish," and he was confident defendant's family's
wealth would "protect" her and their children.
In opposition to defendant's motion, plaintiff submitted a certification
from decedent's friend Paul Thompson. In his certification, Thompson sta ted,
"[a]ccording to Mark (decedent), he and the [d]efendant had come to an
A-2619-20
15
agreement whereby he would not make any claims upon her inheritance, in
exchange for which she would agree not to make any claims upon his Estate."
Thompson certified "[t]hese agreements show that Mark (decedent) and the
[d]efendant were not, in fact, reconciling. Rather they were continuing to
engage with each other on a formal and informal basis to address issues related
to their property and Mark's access to their children." In addition, Thompson
certified that "both during and after his marriage fell apart, Mark often confided
in me . . . regarding his plans for his Estate, which he intended to bequeath
entirely to his sister, . . . [p]laintiff . . . ." Thompson reiterated that after decedent
and defendant separated, he mentioned plaintiff was "getting everything," and
defendant was getting "nothing."
Plaintiff submitted another certification from decedent's friend Karen
Hogg. In her certification, Hogg claimed decedent "made it clear to [her] and
our mutual friends that he was leaving his entire estate to this sister . . . [p]laintiff
. . . and he never waivered in that commitment." Hogg certified decedent
"believed" that both of his children and defendant would be "well provided for
by [d]efendant's [a]unt," who is "very wealthy." Hogg certified decedent told
her "on several occasions" that he had "reached an agreement with [d]efendant"
and he would "disclaim any interest in her expected inheritance from her [a ]unt
A-2619-20
16
in exchange for her agreement to disclaim any interest in his Estate." Based on
decedent's statement, Hogg certified decedent made it "perfectly clear to her,"
Hogg's "husband, and all of our friends, that he wanted [plaintiff] to receive his
entire Estate" and wanted plaintiff to serve as "his Executor."
Defendant submitted a reply certification. She certified while still
residing with decedent, he "would drink until he passed out" even while
babysitting the children. Defendant stated decedent "went for approximately ten
years without speaking to . . . plaintiff." Regarding the home that her aunt was
supposed to assist financing, defendant stated her aunt "changed her mind" and
is leaving her money to charity instead. Defendant certified decedent refinanced
the mortgage on the Farmingdale house in the amount of $300,000, which
allowed him to "take out some of his equity, which he spent before his death."
According to defendant, she will be "homeless" if plaintiff prevailed on her
motion. Defendant claims decedent "bragged" about how he would take care of
her and the children.
In an oral decision following argument, the court denied plaintiff's motion
to probate the will and granted defendant's application to serve as administratrix.
The court found as a matter of law that decedent's thirty-year-old will "was not
in contemplation of marriage, nor does it indicate any specific intent not apply."
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The court noted that decedent and defendant had been married for twelve years.
The court determined that the non-probate assets defendant received were
insufficient to meet her expenses and the expenses of the two minor special
needs children. The court noted plaintiff's assertion that decedent's non-probate
assets were sufficient to support defendant and two minor special needs children
to completely lack "merit" and "any believability."
The court observed defendant dismissed the divorce action, reconciled,
defendant and decedent represented to the public they were married, and raised
two children who have "disorders," and may never be able to live independently.
The court stated the two adopted children are treated as naturally born children
under the laws of inheritance. 3
The court also noted that if defendant's claim had failed under the Pre-
Marital Will Statute, then the children—who were born twenty years after
decedent executed his will—would be entitled to inherit decedent's estate under
the Omitted Children Statute because the will did not mention any future natural
3
"The entry of judgment of adoption shall establish the same relationships,
rights, and responsibilities between child and the adopting parent as if the child
were born to the adopting parent in lawful wedlock." N.J.S.A. 9:3 -50(b). When
applying this State's intestate law, "an adopted child shall have the same rights
of inheritance as if born to the adopting parent in lawful wedlock." Ibid.
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born or adopted children. The court determined plaintiff could never inherit any
part of decedent's estate under either the Pre-Marital Will Statute, or the Omitted
Children Statute in the event the Pre-Martial Will Statute did not apply. No
determination was made by the court as to the value of decedent's estate in
reaching its decision. The court permitted the parties to submit counsel fee
applications. Plaintiff sought in excess of $100,000 in counsel fees. Defendant
objected and certified she only earns $15,000 to $18,000 per year.
Thereafter, the court denied plaintiff's request for counsel fees and costs.
The court found N.J.S.A. 3:B:5-15—the Pre-Marital Will Statute—was
applicable. The court noted the will was dated January 31, 1989, decedent
married October 12, 2007, and has two minor special needs children. The court
stated in its order that there were "[n]o reasonable grounds based on facts for
claim." The court also denied defendant's request for frivolous litigation fees
under N.J.S.A. 2A:15-59.1(a). 4 The court awarded $9,751 in counsel fees to the
4
N.J.S.A. 2A:15-59.1(a) provides:
A party who prevails in a civil action, either as plaintiff
or defendant, against any other party may be awarded
all reasonable litigation costs and reasonable attorney
fees, if the judge finds at any time during the
proceedings or upon judgment that a complaint,
counterclaim, cross-claim or defense of the
nonprevailing person was frivolous.
A-2619-20
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court appointed attorney for the children and awarded $40,447.50 in counsel
fees to defendant's attorney. Memorializing orders were entered. This appeal
followed.
II.
Before us, plaintiff contends the court did not consider the facts in her
favor, contrary to the summary judgment standard and that the court disregarded
her certification, the certification of decedent's friends, accompanying exhibits,
and deposition testimony, and erred in refusing to consider decedent's probable
intent under the third exception to the Pre-Marital Will Statute. Plaintiff asserts
defendant repeatedly offered inconsistent discovery responses and testimony
raising issues about credibility that should not have been summarily decided by
the court. Plaintiff maintains the court found as a fact that decedent and
defendant were engaged in a "multi-year reconciliation" that continued until he
died and that they never agreed to disclaim their interest in each other's estates.
Plaintiff argues she established that defendant was amply provided for
outside decedent's will through his employer provided life insurance and 401(k)
beneficiary designations in lieu of a testamentary provision. Plaintiff asserts she
should be appointed executrix under the will. She also contends the court abused
its discretion in denying her counsel fee application because reasonable grounds
A-2619-20
20
existed for her claims, which the court found were not made in bad faith. We
agree with plaintiff that the court made factual findings on these critical issues
on a disputed record.
A.
When reviewing an order granting or denying summary judgment, this
court applies "the same standard governing the trial court." Oyola v. Liu, 431
N.J. Super. 493, 497 (App. Div. 2013). We owe no deference to the motion
judge's conclusions on issues of law. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995). Courts ruling on summary judgment
are required to view the evidence presented in the light most favorable to the
non-moving party to determine whether the materials presented "are sufficient
to permit a rational factfinder to resolve the alleged disputed issue in favor of
the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995).
"An issue of fact is genuine only if, considering the burden of persuasion
at trial, the evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party, would require
submission of the issue to the trier of fact." Ibid. In other words, summary
judgment is properly granted "[w]hen the evidence 'is so one -sided that one party
A-2619-20
21
must prevail as a matter of law.'" Davis v. Brickman Landscaping, Ltd., 219
N.J. 395, 406 (2014) (quoting Brill, 142 N.J. at 540).
The non-moving party bears the affirmative burden "to make a complete
and comprehensive showing why summary judgment should not be entered."
Lombardi v. Masso, 207 N.J. 517, 556 (2011). To satisfy this burden, the non-
moving party "must 'demonstrate by competent evidential material that a
genuine issue of fact exists.'" Globe Motor Co., v. Igdalev, 225 N.J. 469, 479-
80 (2016) (quoting Robbins v. Jersey City, 23 N.J. 229, 240-41 (1957)). The
court must then determine "whether a rational factfinder could resolve the
alleged disputed issue in favor of the non-moving party," id. at 481 (quoting
Perez v. Professionally Green, LLC, 215 N.J. 388, 405-06 (2013)), bearing in
mind "neither the motion court nor an appellate court can ignore the elements of
a cause of action or the evidential standard governing the cause of action ,"
Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
B.
Probable Intent
We turn first to plaintiff's argument on appeal that the court misapplied
the equitable doctrine of probable intent. According to plaintiff, decedent's
probable intent was for her to inherit his estate as contemplated in his will rather
A-2619-20
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than defendant and the two children because decedent provided for defendant
and the children outside of his will by naming defendant the beneficiary on his
life insurance policy and 401(k) plan. Plaintiff argues the court misapplied the
Pre-Marital Will Statute, which created an "absurd result."
"In interpreting a will, [the court's] aim is to ascertain the intent of the
testator." In re Est. of Payne, 186 N.J. 324, 335 (2006). Our Supreme Court has
adopted the "doctrine of probable intent," which recognizes courts should give
"primary emphasis" to the testator's "dominant plan and purpose" as it appears
"when read and considered in . . . light of the [will's] surrounding facts and
circumstances." Ibid. (quoting Fid. Union Tr. Co. v. Robert, 36 N.J. 561, 564-
65 (1962)). The doctrine of probable intent is also codified in N.J.S.A. 3B:3-
33.1. Subsection (a) addresses wills:
The intention of a testator as expressed in his [or her]
will controls the legal effect of his [or her] dispositions,
and the rules of construction expressed in N.J.S.A.
3B:3-34 through N.J.S.A. 3B:3-48 shall apply unless
the probable intent of the testator, as indicated by his
[or her] will and relevant circumstances, is contrary.
The doctrine of probable intent has "a 'broader and more liberal approach to will
construction . . . .'" In re Est. of Flood, 417 N.J. Super. 378, 381 (App. Div.
2010) (quoting In re Est. of Burke, 48 N.J. 50, 63 (1966)).
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23
Defendant claims that plaintiff was not on speaking terms with decedent
when he died and had not spoken to him for several years before his death.
Defendant maintains plaintiff has no relationship with the twins and did not
comfort them at decedent's funeral. In addition, defendant asserts she was the
one who found decedent's will and gave it to plaintiff through counsel at her
request, in response to plaintiff's attack on defendant's credibility that she was
hiding information about decedent's estate.
Plaintiff argues she presented competent evidence to invoke the probable
intent doctrine that the court ignored. Plaintiff's evidence, in addition to the
will, consisted of multiple emails from decedent to her stating defendant is not
named in his will, and certifications from two friends stating decedent intended
to leave plaintiff his estate rather than his spouse and childre n.
Counsel for the children points out there is nothing in the record to
indicate decedent intended to disinherit his disabled children. The certifications
submitted by plaintiff and defendant's deposition testimony—which is
contradictory in and of itself—are in direct contrast to the statements made in
defendant's certification, raising issues of fact. Plaintiff asserts defendant and
counsel for the children failed to file responding statements to her statement of
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undisputed facts as required by Rule 4:46-2(b), and therefore, such facts should
be deemed admitted in analyzing plaintiff's motion for summary judgment.
The Pre-Marital Will Statute reads in part:
a. If a testator's surviving spouse married the testator
after the testator executed the testator's will . . . the
surviving spouse . . . is entitled to receive, as an
intestate share, no less than the value of the share of the
estate the surviving spouse . . . would have received if
the testator had died intestate, unless:
(1) it appears from the will or other evidence that the
will was made in contemplation of the testator's
marriage to the surviving spouse . . . ;
(2) the will expresses the intention that it is to be
effective notwithstanding any subsequent marriage or
domestic partnership; or
(3) the testator provided for the spouse or domestic
partner by transfer outside the will and the intent that
the transfer will be in lieu of a testamentary provision
is shown by the testator's statements or is reasonably
inferred from the amount of the transfer or other
evidence.
[N.J.S.A. 3B:5-15(a) (emphasis added).]
Subsection (1) is not applicable here because decedent's will was not made in
contemplation of his marriage to defendant. Subsection (2) is also not applicable
because decedent's will does not express the intention it is to be effective
notwithstanding his marriage to defendant. We now address subsection (3).
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C.
Pre-Marital Will Statute
Subsection (a) (3)
Plaintiff contends the court improvidently held the $175,314.71 non-
probate assets defendant received from decedent's life insurance policy and
401(k) plan did not satisfy subsection (a)(3) of the Pre-Marital Will Statute, and
thus, the doctrine of probable intent could not be invoked. In plaintiff's view,
the non-probate assets defendant received satisfied subsection (a)(3), and the
court improperly determined there was sufficient information to reject plaintiff's
claim that decedent's will controls.
To satisfy subsection (a)(3), the testator must have provided for the spouse
by a transfer made outside the will with the intent the transfer was in lieu of a
testamentary provision. N.J.S.A. 3B:15(a)(3). That intent may be shown where
"the testator provided for the spouse or domestic partner by transfer outside the
will and the intent that the transfer be in lieu of a testamentary provision is
shown by the testator's statements or is reasonably inferred from the amount of
the transfer or other evidence." Id.
Plaintiff contends decedent's statements evinced his "testamentary
scheme" whereby she would receive his probate assets and defendant and the
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children would receive his non-probate assets in lieu of a testamentary
provision. She also asserts the evidence supports the inference that "decedent
was adamant that his probate assets pass" to her and not defendant.
In delivering its decision, the court did not analyze whether the terms of
decedent's will remained his testamentary intent throughout the remainder of his
life. The court's decision is problematic because it focused on defendant's
financial need in light of the fact she is raising two special needs children and
only received $175,314.71 in non-probate assets. On this basis, the court found
defendant was an omitted spouse because she was not provided for sufficiently
pursuant to N.J.S.A. 3B:5-15(a)(3) and was entitled to her intestate share of the
estate. A reading of the court's decision persuades us it was imposing a personal
sense of fairness on the situation as it came to pass. It apparently seemed unfair
to the court that defendant be left without sufficient financial means to support
the children.
In our review, the analysis of the doctrine of probable intent, the Pre -
Marital Will Statute, and Omitted Children Statute turns on first determining the
value of decedent's estate net of liabilities. Then, the court should analyze and
compare the net value of the estate with the amount of the non -probate assets of
$175,314.71 defendant received. Our review of the record convinces us this task
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was not undertaken but is vital before deciding the contested issues of fact
presented.
Although the parties agreed defendant received $175,314.71 outside the
will, they had wildly divergent views of the value of the decedent's probate
assets consisting largely of the Farmingdale and Tuckerton properties, with
plaintiff asserting they totaled $850,000 and defendant contending they totaled
$350,000. There was nothing in the record direct or extrinsic that supports either
value. Without a finding on the value of the probate assets, the court could not
make a finding as to whether the amount of the transfer of the non -probate assets
was sufficient to allow an inference that the decedent intended to provide for
defendant and the children outside the will under N.J.S.A. 3B:5-15(a)(3).
Because the court resolved critical factual questions on a disputed and
incomplete record, we conclude summary judgment was improvidently granted.
III.
Plaintiff does not challenge the court's finding that the Omitted Children
Statute would have applied here if the Pre-Marital Will Statute did not. We
briefly note the Omitted Children Statute provides in part:
a. Except as provided in subsection b., if a testator fails
to provide in his [or her] will for any of his [or her]
children born or adopted, the omitted after-born or
adopted after the execution of his [or her] will, the
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omitted after-born or after-adopted child receives a
share in the estate as follows:
(1) If the testator had no child living when he [or she]
executed the will, an omitted after-born or after-
adopted child receives a share in the estate equal in
value to that which the child would have received had
the testator died intestate, unless the will devised all or
substantially all of the estate to the other parent of the
omitted child or to a trust primarily for the benefit of
that other parent and that other parent survives the
testator and is entitled to take under the will.
(2) If the testator had one or more children living when
he [or she] executed the will, and the will devised
property or an interest in property to one or more of the
then-living children, an omitted after-born or after-
adopted child is entitled to share in the testator's estate
as follows:
(a) the portion of the testator's estate in which the
omitted after-born or after-adopted child is entitled to
share is limited to devises made to the testator's then-
living children under the will.
(b) the omitted after-born or after-adopted child is
entitled to receive the share of the testator's estate, as
limited in subparagraph (a), that the child would have
received had the testator included all omitted after-born
and after-adopted children with the children to whom
devises were made under the will and had given an
equal share of the estate to each child.
(c) to the extent feasible, the interest granted an omitted
after-born or after-adopted child under this section
must be of the same character, whether equitable or
legal, present or future, as that devised to the testator's
then-living children under the will.
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[N.J.S.A. 3B:5-16.] 5
Defendant characterizes decedent's failure to mention the children in his will as
an omission, implying the children should take under the statute permitting
portions of an estate to pass to omitted children. Id. On remand, the court shall
address whether the Omitted Children Statute—including any subsection—
applies under the circumstances of the case following the plenary hearing and
proofs adduced at the hearing.
IV.
Despite her unsuccessful challenge, plaintiff filed a Rule 4:42-9(a)(3)
application to have the estate pay for her attorney's fees. Plaintiff contends the
court abused its discretion in denying her fee application because she had
5
We note that the Omitted Children Statute contains a nearly identical
subsection to the Pre-Marital Will Statute. N.J.S.A. 3B:5-16(b)(2) provides:
b. Neither subsection a.(1) nor subsection a.(2) applies
if:
(1) it appears from the will that the omission was
intentional; or
(2) the testator provided for the omitted after-born or
after-adopted child by transfer outside the will and the
intent that the transfer be in lieu of a testamentary
provision is shown by the testator's statements or is
reasonably inferred from the amount of the transfer or
other evidence.
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reasonable cause to bring her "case of first impression" based on the interplay
between the doctrine of probable intent and the Pre-Marital Will Statute, and her
claims were brought in good faith.
In a will contest, the allowance of counsel fees and costs under Rule 4:42-
9(a)(3) is discretionary. In re Reisdorf, 80 N.J. 319, 327 (1979). "'[F]ee
determinations by trial [judges] 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)). "While deference will ordinarily be given to discretionary
decisions, such decisions will be overturned if they were made under a
misconception of the applicable law." O'Neill v. City of Newark, 304 N.J.
Super. 543, 550 (App. Div. 1997).
Because we are remanding for a plenary hearing, we vacate and reverse
the court's orders on the parties' applications for counsel fees and costs.
Following the plenary hearing, the court shall consider anew any request for
counsel fees and costs. We offer no dispositive determination on the factual and
legal issues that may be presented as the matter proceeds on remand.
In sum, we reverse the orders granting summary judgment to defendant,
and we vacate and reverse the court's orders on counsel fees. The matter is
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remanded for a plenary hearing consistent with our opinion. Jurisdiction is not
retained.
Reversed and remanded.
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