Will of Liebl, Matter of

• Decision Date: 13 November 1992
• Citation: 617 A.2d 266,260 N.J.Super. 519
• Parties: In the Matter of the Probate of the Alleged Last WILL and Testament of Sidney LIEBL, Sr., Deceased.
• Court: New Jersey Superior Court — Appellate Division

Page 519

260 N.J.Super. 519

617 A.2d 266

In the Matter of the Probate of the Alleged Last WILL and Testament of Sidney LIEBL, Sr., Deceased.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 14, 1992.

Decided Nov. 13, 1992.

Catherine M. Langlois, Morristown, for appellant Sidney liebl, jr.

Breitenstein & Browne, Closter, for respondent Arleen Backer (Allan P. Browne, of counsel and on the brief).

Before Judges MICHELS and BILDER.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Sidney Liebl, Jr. appeals from (1) a judgment of the Chancery Division, Probate Part, that dismissed his complaint seeking to set aside the judgment of the Bergen County Surrogate admitting to probate the Last Will and Testament of his father Sidney Liebl, Sr., deceased, and awarded defendant Arleen Backer costs against him, and (2) a post-judgment order denying his motion for rehearing or reconsideration.

On June 5, 1990, Sidney Liebl, Sr. died at age 82. Decedent was survived by his son, plaintiff; his granddaughter, defendant; and two great-grandchildren, Bryan and Brett Backer. On June 21, 1990, the Last Will and Testament of decedent, dated July 21, 1989, was admitted to probate by judgment of the Surrogate of Bergen County. The will named defendant as the primary beneficiary. Thereafter, plaintiff instituted this action in the Chancery Division, Probate Part, seeking to set aside the judgment of probate and to have a substitute administrator pendente lite appointed. Plaintiff claimed that decedent "was incompetent and could not have known the nature of his acts and was, therefore, incapable of making a Last Will and Testament." The trial court held that decedent's July 21, 1989 will was properly admitted to probate and that "the proofs establish that there is no basis for a challenge to the admission of the Will to probate based upon lack of testamentary capacity, undue influence, or suspicious circumstance." This appeal followed.

Plaintiff seeks a reversal of the judgment, contending that (1) decedent did not comprehend the nature of his assets and, therefore, the distribution under his will was invalid; (2) the facts established that there was undue influence by defendant upon decedent so as to invalidate the July 21, 1989 will; (3) the trial court should not have enforced the provisions of the will since the result is contrary to public policy, and (4) since the will of July 21, 1989 should not be probated, decedent's will of August 5, 1982 should be deemed uncancelled and unrevoked or, alternatively, the intestacy statute should apply. We disagree and affirm.

We are satisfied from our study of the record and the arguments presented that there is sufficient credible evidence in the record as a whole to support the findings and conclusions of the trial court and we discern no good reason or justification for disturbing them. See Leimgruber v. Claridge Assocs. Ltd., 73 N.J. 450, 455-56, 375 A.2d 652 (1977); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974); State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). See also R. 2:11-3(e)(1)(A). Moreover, all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E).

Additionally, we point out that "[t]he findings of the trial court on the issues of testamentary capacity and undue influence, though not controlling, are entitled to great weight since the trial court had the opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony." Gellert v. Livingston, 5 N.J. 65, 78, 73 A.2d 916 (1950); In re Hoover, 21 N.J.Super. 323, 328, 91 A.2d 155 (App.Div.1952), certif. denied, 11 N.J. 211, 93 A.2d 819 (1953). Cf. Dolson v. Anastasia, 55 N.J. 2, 6-7, 258 A.2d 706 (1969). Such factual findings should not be disturbed unless they are so manifestly unsupported or inconsistent with the competent, reasonably credible evidence so as to offend the interests of justice. Leimgruber v. Claridge Assocs., Ltd., supra, 73 N.J. at 456, 375 A.2d 652; Rova Farms Resort v. Investors Ins. Co., supra, 65 N.J. at 484, 323 A.2d 495; State v. Johnson, supra, 42 N.J. at 162, 199 A.2d 809.

Furthermore, there is a legal presumption that "the testator was of sound mind and competent when he executed the will." Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76, 432 A.2d 890 (1981) (quoting Gellert v. Livingston, supra, 5 N.J. at 71, 73 A.2d 916); In re Hoover, supra, 21 N.J.Super. at 325, 91 A.2d 155. The gauge of testamentary capacity is "whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the will." Gellert v. Livingston, supra, 5 N.J. at 73, 73 A.2d 916; see 5 Alfred C. Clapp, New Jersey Practice--Wills and Administration § 36 at 150-56 (1982). Testamentary capacity is to be tested at the date of the execution of the will. Gellert v. Livingston, supra, 5 N.J. at 76, 73 A.2d 916. Furthermore, "[a]s a general principle, the law requires only a very low degree of mental capacity for one executing a will." In re Rasnick, 77 N.J.Super. 380, 394, 186 A.2d 527 (Cty.Ct.1962); see Loveridge v. Brown, 98 N.J.Eq. 381, 387, 129 A. 131 (E. & A. 1925); 5 Clapp, supra, § 36 at 153. "[T]he burden of establishing a lack of testamentary capacity is upon the one who challenges its existence [and] [t]hat burden must be sustained by clear and convincing evidence." In re Hoover, supra, 21 N.J.Super. at 325, 91 A.2d 155; accord In re Rasnick, supra, 77 N.J.Super. at 395, 186 A.2d 527. A testator's misconception of the exact nature or value of his assets will not invalidate a will where there is no evidence of incapacity. See In re Livingston's Will, 37 A. 770, 772 (Prerog.1897); McCoon v. Allen, 45 N.J.Eq. 708, 719, 17 A. 820 (Prerog.Ct.1889); Collins v. Osborn, 34 N.J.Eq. 511, 520 (Prerog.Ct.1881); 5 Clapp, supra, § 36 at 151 n. 8. "Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity." 79 Am.Jur.2d Wills § 72 at 331 (1975). Rather, a testator need only know that his property is worth some value and have a general estimate as to the nature of his estate. Ibid. "[I]t is not ignorance of the kind or amount of property owned by the testatrix which invalidates [a] will, but ignorance resulting from a mental incapacity to comprehend the kind and amount of such property." In re Livingston's Will, supra, 37 A. at 772.

"Testamentary dispositions are required to be enforced unless contrary to public policy or a rule of positive law." Alper v. Alper, 2 N.J. 105, 114-15, 65 A.2d 737 (1949); Girard Trust Co. v. Schmitz, 129 N.J.Eq. 444, 453, 20 A.2d 21 (Ch.1941). "It is well settled in this State that every citizen of full age and sound mind has the right to make such disposition of property by will or deed as he or she in the exercise of individual judgment may deem fit." Casternovia v. Casternovia, 82 N.J.Super. 251, 257, 197 A.2d 406 (App.Div.1964); Benedict v. New York Trust Co., 48 N.J.Super. 286, 289, 137 A.2d 446 (Ch.Div.), aff'd o.b., 50 N.J.Super, 177, 141 A.2d 340 (App.Div.1958); see In re Estate of Campbell, 71 N.J.Super. 307, 310, 176 A.2d 840 (Cty.Ct.1961). Further, a testator is not required to divide his or her estate equally among his or her children. See Casternovia v. Casternovia, supra, 82 N.J.Super. at 257, 197 A.2d 406; 5 Clapp, supra, § 61 at 217 n. 31; 79 Am.Jur.2d Wills §§ 66, 67 at 324-26. Indeed, a testator "may even exclude one or more or all of the members of his own family." Benedict v. New York Trust Co., supra, 48 N.J.Super. at 289, 137 A.2d 446. "Our statute permits intentional disinheritance." In re Estate of Campbell, supra, 71 N.J.Super. at 310, 176 A.2d 840; see Stevens v. Shippen, 28 N.J.Eq. 487, 536 (Ch.1877), aff'd, 29 N.J.Eq. 602 (E. & A.1878), aff'd sub nom., Clarkson v. Stevens, 106 U.S. 505, 1 S.Ct. 200, 27 L.Ed. 139 (1882); N.J.S.A. 3B:5-16. "A will cannot be set aside merely because it is 'unequal or unjust.' 'If capacity, formal execution, and volition appear, the will of the most impious man must stand, unless there is something, not in the motives which led to the disposition, but in the actual disposition, against good morals or against public policy.' " In re Blake's Will, 21 N.J. 50, 57, 120 A.2d 745 (1956) (quoting Den D. Trumbull v. Gibbons, 22 N.J.L. 117, 153 (Sup.Ct.1849)); see 79 Am.Jur.2d Wills § 65 at 324.

An unnatural will, that is, one which fails to provide for the natural objects of the testator's bounty, is sometimes characterized as a strong or formidable circumstance or as raising a suspicion of undue influence. However, mere inequality of benefit among those of equal degree of consanguinity will not of itself justify an inference of undue influence. It must be borne in mind that it is clearly lawful for a testator to make an unjust will; and that it is lawful, too, for a testator to entertain a prejudice or a partiality. [5 Clapp, supra, § 61 at 216-17 (footnotes omitted) ].

"Any repugnance the court may feel at the unnaturalness of the testament cannot be permitted to influence it to frustrate the testator's legal right to dispose of his property as he willed." In re Petkos, 54 N.J.Super. 118, 128, 148 A.2d 320 (App.Div.), certif. denied, 30 N.J. 150, 152 A.2d 170 (1959). "[T]here is no judicial superintendence of the reason and wisdom of the testamentary act, save as it offends against positive law or imperative public policy." In re Blake's Will, supra, 21 N.J. at 57, 120 A.2d 745.

Applying these settled principles here, it is perfectly clear that decedent's will, dated July 21, 1989, was properly admitted to probate. The proofs show that decedent had sufficient mental capacity to draft his will. Indeed, both parties...