IN THE MATTER OF THE ESTATE OF SAMUEL JOSEPH FEINER LYLE BROOCHIAN VS. USHER FEINER (190695, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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