In re Estate of Malsberger, 071417 NJSUP, A-2751-15T3

• Judge: Before Judges Hoffman and Whipple.
• Date: 14 July 2017
• Docket Number: A-2751-15T3
• Parties: IN THE MATTER OF THE ESTATE OF ALICE M. MALSBERGER, DECEASED.
• Court: New Jersey Superior Court

IN THE MATTER OF THE ESTATE OF ALICE M. MALSBERGER, DECEASED.

No. A-2751-15T3

Superior Court of New Jersey, Appellate Division

July 14, 2017

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2017

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Burlington County, Docket No. 2015-1696.

Gary Stewart Seflin, attorney for appellant Lilia E. Lawler, Executrix of the Estate of Robert Rich (Trevor C. Serine, on the briefs).

Bernetich, Hatzell & Pascu, L.L.C., attorneys for respondent Patricia White (Donald F. Browne, Jr., on the brief).

J. Llewellyn Mathews, attorney for respondent Emanuel Pratsinakis.

George N. Styliades, attorney for respondents Dionysis Nicholaou and Anna Nicholaou, join in the brief of respondent Emanuel Pratsinakis.

Before Judges Hoffman and Whipple.

PER CURIAM

The Estate of Robert Rich (appellant) appeals from a February 18, 2016 Chancery Division order admitting to probate the proffered will (Proposed Will) of Alice M. Malsberger (Alice). We affirm.

I.

The material facts are not in dispute. Alice died on May 26, 2015. Following Alice's death, plaintiff Patricia White, a niece by marriage, found a handwritten document among Alice's personal papers in Alice's kitchen. The handwritten documents stated: I'm Alice Malsberger - I wish to be cremated upon my death - along with my husband Joe -our ashes placed in a similar (illegible) and placed in mausoleum. I wish my estate be sold & divide in three and 1/3 granted to Fr. Emmanuel, one third to Patricia White, and one third to Dionysis & Anna Nicholaou. I want Pat White to be executrix. I intend to see a lawyer & to validate everything.

On October 8, 2015, an investigation identified Robert Rich of Philadelphia as Alice's next of kin and sole intestate heir. The following week, plaintiff filed a verified complaint in the Probate Part seeking to admit the Proposed Will to probate. On December 20, 2015, Rich died. On February 2, 2016, Rich's executor filed an answer to plaintiff's complaint, disputing plaintiff's allegations.

All parties agreed the matter did not require discovery, and the handwriting on the Proposed Will belonged to Alice. After hearing argument, Judge Paula Dow proceeded to "try the action on the pleadings and affidavits, and render final judgment thereon." R. 4:67-5. On February 18, 2016, the judge issued an order admitting the Proposed Will to probate, accompanied by an eight-page written opinion. In pertinent part, the judge stated: In the present case, the [c]ourt finds that [Alice] intended for the handwritten document to constitute a will and simply intended to see a lawyer for any procedural formalities which were lacking.

In sum, under analysis of both N.J.S.A. 3B:3-2(b) and N.J.S.A. 3B:3-3, the [c]ourt finds that [p]laintiff has met the burden by clear and convincing evidence of demonstrating that the purported will was written by [Alice] and was intended to constitute a valid last will and testament.

This appeal followed. Appellant challenges the findings and conclusions of the trial court, asserting the court abused its discretion by ignoring and misinterpreting the plain text of the...