NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4562-13T1

IN THE MATTER OF THE ESTATE OF

BYUNG-TAE OH, DECEASED.

______________________________________________________

Argued April 26, 2016 – Decided

Before Judges Fisher, Rothstadt and Currier.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Probate Part, 

Bergen County, Docket No. P-018-13.

William D. Grand argued the cause for 

appellant Hyung Kee Oh (Greenbaum, Rowe, 

Smith & Davis LLP, attorneys; Mr. Grand, of 

counsel; Mr. Grand and Olivier Salvagno, on 

the brief).

Evelyn R. Storch argued the cause for 

respondent Won Ki Oh (Harwood Lloyd, LLC, 

attorneys; David M. Repetto, of counsel; Ms. 

Storch and Minjung Suh, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal, we consider the propriety of a summary 

judgment that determined whether a money transfer — made by a 

now-deceased Korean citizen to a New Jersey limited liability 

company — constituted an investment and, thus, an asset of the 

decedent at the time of his death, or a gift to his son, the 

APPROVED FOR PUBLICATION

May 13, 2016

APPELLATE DIVISION

May 13, 2016
2 A-4562-13T1

general partner of the limited liability company. We also 

consider whether the court had jurisdiction to make that 

determination, even though this argument was not asserted in the 

trial court.

The following facts are undisputed. Byung-Tae Oh, a citizen 

and resident of the Republic of Korea, died in Seoul on February 

6, 2012. Because he died intestate, it appears that, pursuant to 

Korean law, his two sons and one daughter — Won Ki Oh, Hyung Kee 

Oh, and Hyunjoo Oh — inherit equal shares of the estate and the 

surviving spouse, Hyesung Lee, inherits one-and-one-half times 

the share inherited by each child.1 It is also undisputed that, 

in 2001, Byung-Tae Oh (hereafter "decedent") wire transferred 

$900,000 from his personal bank account at Standard Chartered 

Bank, Seoul Nonheyon Branch, into the New Jersey business 

account of B&H Consulting and Development Company, LLC, a New 

Jersey limited liability company formed by decedent's youngest 

son, Hyung Kee Oh, and his son's wife, Sung Hee Park.

In a complaint filed in the Probate Part on January 18, 

2013, plaintiff Won Ki Oh (hereafter "plaintiff"), decedent's 

eldest son and a resident of the Republic of Korea, alleged that 

 

1 General information about Korean intestacy laws was included in 

a certification filed in the trial court by a Korean attorney. 

The parties do not appear to dispute how Korean law requires the

division of decedent's estate.
3 A-4562-13T1

decedent owned at the time of his death various interests in 

property in New Jersey, including a 40.8% interest in B&H. The 

action sought the appointment of an administrator for the 

purpose of marshaling decedent's New Jersey assets.2

Decedent's other son, Hyung Kee Oh (hereafter "defendant"), 

a New Jersey resident and general partner of B&H, moved to 

dismiss this action based on his contention, among others, that 

decedent owned no assets in New Jersey at the time of his death.

Contrary to plaintiff's claims, defendant asserted that in 2001 

decedent gave him $900,000, which he used "as part of the 

start[-]up money for B&H," and that "[a]t no time did [decedent] 

treat that payment as entitling him to a legal ownership 

interest in B&H." The motion to dismiss was denied without 

prejudice.

Thereafter, the parties pressed their positions as to how 

the $900,000 transfer by decedent to B&H should be characterized 

— defendant arguing it was a gift and plaintiff arguing it was 

an investment in B&H and, therefore, part of the estate — by 

cross-moving for summary judgment. Chancery Judge Robert P. 

Contillo granted plaintiff's and denied defendant's motion. 

Defendant appeals, arguing the judge erred in granting summary 

 

2 Plaintiff alleged in his complaint that an estate tax return 

filed by decedent's widow valued the gross estate at more than 

33,000,000,000 South Korean Won (approximately $31,000,000).
4 A-4562-13T1

judgment because, in his view: (1) the court lacked jurisdiction 

over the dispute; (2) the chancery judge mistakenly applied New 

Jersey law instead of Korean law; (3) even if New Jersey law 

applies, the chancery judge erred "by refusing to apply the 

presumption that a transfer from a parent to child is a gift"; 

(4) the chancery judge should have conducted an evidentiary 

hearing to develop and resolve the parties' factual dispute; and 

(5) the chancery judge erroneously provided the administrator 

with greater authority than necessary in the circumstances.

Despite defendant's failure to present his first argument —

lack of jurisdiction — to the trial court,3 we consider and 

reject it on its merits.

4

Defendant's jurisdictional argument presents a classic 

chicken-and-egg problem. Our probate courts may exert ancillary 

jurisdiction over property within the State when possessed by an 

intestate nonresident at the time of death. N.J.S.A. 3B:10-7. 

In determining whether it has jurisdiction pursuant to this 

statute, a court must necessarily determine whether the property 

 

3 Defendant did not signal, as he should have, that this argument

was not asserted in the trial court as required by Rule 2:6-

2(a)(1).

4 A lack of subject matter jurisdiction may be asserted for the 

first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 

N.J. 229, 234 (1973); Macysyn v. Hensler, 329 N.J. Super. 476, 

481 (App. Div. 2000).
5 A-4562-13T1

within the State was possessed by an intestate nonresident. 

There being no dispute that decedent was a nonresident and 

intestate, and that B&H is a New Jersey limited liability 

company, the only question about the exercise of jurisdiction 

over the property is whether it was owned by decedent at the 

time of his death. That remaining question, however, constitutes 

the primary dispute between the parties. Consequently, to 

determine whether the court possessed ancillary jurisdiction

pursuant to N.J.S.A. 3B:10-7, the judge was required to resolve 

the merits of the parties' dispute about the nature of the 

$900,000 transfer.

As perplexing as this may initially sound, the situation is 

not uncommon; our Supreme Court has recognized that a 

jurisdictional question may often be intertwined with the 

underlying dispute and, in that instance, "the jurisdictional 

determination should await a determination of the relevant facts 

on either a motion going to the merits or at trial." Blakey v. 

Continental Airlines, 164 N.J. 38, 71 (2000) (quoting Augustine 

v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)); see also

Plume v. Howard Sav. Inst., 46 N.J.L. 211, 228 (Sup. Ct. 1884) 

(observing, in a similar setting, that an error in a 

determination that the decedent was a resident of the state 

might warrant reversal of the judgment "but it can have no 
6 A-4562-13T1

bearing against the right of the court to adjudicate upon the 

facts before it"); In re Russell's Estate, 64 N.J. Eq. 313, 317-

18 (Prerog. Ct. 1902) (recognizing the court's authority to 

resolve a dispute about the decedent's residency before 

determining whether the court possessed jurisdiction over a 

nonresident decedent's New Jersey property). Had defendant 

raised this jurisdictional issue when he either opposed or moved

for summary judgment,

5 the chancery judge would have been in no 

different position than he was when he ruled on the crossmotions. That is, the judge would have recognized he would have 

to first resolve the dispute about the nature of the $900,000 

transfer before determining whether the court possessed 

ancillary jurisdiction over the property. In correctly 

ascertaining the monetary transfer constituted an investment and 

not a gift, Chancery Judge Contillo implicitly and correctly 

concluded the court possessed jurisdiction over the parties' 

dispute.6

 

5 Defendant's argument that he asserted lack of jurisdiction as 

an affirmative defense in his responsive pleading does not mean 

that he raised the issue in the trial court. A litigant must do 

more and cannot expect that a judge who has been asked to rule 

on a dispositive motion will scour the pleadings for other 

arguments or defenses a party might have once contemplated but 

chose not to assert in the motion.

6 It appears that to some extent defendant argues in this same 

context that the Republic of Korea offers a more convenient or 

(continued)
7 A-4562-13T1

Our rejection of defendant's conflict-of-law argument — by 

which he claims the judge should have applied Korean rather than 

New Jersey law — rests on different grounds. First, unlike the 

jurisdictional issue, the conflict-of-law issue was not raised 

in the trial court and, therefore, we need not consider 

defendant's belated argument that the chancery judge should have 

applied Korean law. See US Bank Nat'l Ass'n v. Guillaume, 209 

N.J. 449, 483 (2012). Second, when posing a conflict-of-law 

issue, a party is required to demonstrate a difference between 

the competing bodies of law. DeMarco v. Stoddard, 223 N.J. 363, 

383 (2015); Cornett v. Johnson & Johnson, 211 N.J. 362, 374 

(2012); P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 143 

(2008). Defendant did not argue to the chancery judge, and has 

not argued to us, that Korean law compels a different result 

than that reached through a proper application of New Jersey 

 

(continued)

better forum for resolution of the issues presented; plaintiff, 

in fact, commenced an action there a few weeks after the matter 

at hand was commenced. We find insufficient merit in defendant's 

argument in this regard to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). We do not mean to be flippant in 

suggesting that the best source of information for deciding this 

issue would be the decedent, but he is not available regardless 

of which forum adjudicates the issue. The point is this action 

was filed first, and defendant has not demonstrated how Korea 

provides a better forum for a fair and complete resolution of 

the issues that might warrant a disregard of the presumption in 

favor of the first-filed action. See Sensient Colors, Inc. v. 

Allstate Ins. Co., 193 N.J. 373, 386 (2008).
8 A-4562-13T1

law; indeed, he has cited only New Jersey authorities in his 

written submissions. Consequently, we find insufficient merit 

in this argument to warrant further discussion. R. 2:11-

3(e)(1)(E). 

In his third and fourth arguments, defendant contends the 

chancery judge, in granting summary judgment in plaintiff's 

favor, failed to apply the presumption described in Bhagat v. 

Bhagat, 217 N.J. 22, 41-42 (2014), and mistakenly declined to 

conduct an evidentiary hearing or otherwise recognize there were 

disputed questions of material fact that required a denial of 

summary judgment.

The judge's rejection of the presumption and his grant of 

summary judgment are not entitled to deference. In reviewing the 

summary judgment entered in plaintiff's favor, we apply the same

standard that bound the chancery judge, see, e.g., Townsend v. 

Pierre, 221 N.J. 36, 59 (2015), and we are required to reverse 

when "the competent evidential materials presented, . . . viewed 

in the light most favorable to the non-moving party, are 

sufficient to permit a rational factfinder to resolve the 

alleged dispute in favor of the non-moving party," Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). The import 

of this standard is that courts "should not hesitate to grant 

summary judgment" — and appellate courts should not hesitate to 
9 A-4562-13T1

affirm those summary judgments — "when the evidence 'is so onesided that one party must prevail as a matter of law.'" Ibid.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 

S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

We turn first to the burden of persuasion when determining 

whether a transfer constitutes a gift. As the Supreme Court has 

recognized, "[t]he burden of proving an inter vivos gift is on 

the party who asserts the claim." Bhagat, supra, 217 N.J. at 41 

(citing Sadofski v. Williams, 60 N.J. 385, 395 n.3 (1972)). As 

a general matter, "the recipient [of the alleged gift] must show 

by 'clear, cogent and persuasive' evidence that the donor 

intended to make a gift." Ibid. (quoting Farris v. Farris Eng'g 

Corp., 7 N.J. 487, 501 (1951)). The Supreme Court has also 

described the degree of proof necessary as "clear and 

convincing" where the claim of a gift is first asserted after 

the alleged donor's death, as here. Sadofski, supra, 60 N.J. at 

395 n.3.

The Court has held, however, that when "the transfer is 

from a parent to a child, the initial burden of proof on the 

party claiming a gift is slight." Bhagat, supra, 217 N.J. at 41 

(citing Metropolitan Life Ins. Co. v. Woolf, 136 N.J. Eq. 588, 

592 (Ch. 1945), aff’d, 138 N.J. Eq. 450 (E. & A. 1946)). In 

essence, it is said that "a presumption arises that the transfer 
10 A-4562-13T1

is a gift," ibid. (citing numerous cases, including, Peppler v. 

Roffe, 122 N.J. Eq. 510, 515 (E. & A. 1937)), because "a child 

is considered a natural object of the bounty of the donor," id.

at 42 (citing Weisberg v. Koprowski, 17 N.J. 362, 373 (1955)). 

We agree with Chancery Judge Contillo that defendant was 

not entitled to the presumption that might normally attach to a 

transfer from a parent to a child because decedent did not 

transfer $900,000 to defendant; he transferred those funds to 

B&H.7 Without this presumption, defendant was obligated to show 

by clear, cogent and persuasive evidence that decedent intended 

that the transfer to B&H was a gift to him. We agree as well

with the judge that defendant's factual presentation fell 

woefully short and its inadequacy justified the entry of summary 

judgment.

Defendant offered no documentation that would suggest 

decedent intended to make a gift; instead he largely alluded to 

the absence of documentation, pointing out that plaintiff was 

unable to produce either a certificate of decedent's membership 

in B&H or a loan agreement between B&H and decedent. That is 

all true, but plaintiff did provide documentation that showed 

decedent annually confirmed the existence of this investment in 

 

7 It is noteworthy that defendant and his wife maintained a 

personal bank account in New Jersey into which any monetary gift 

could have been conveyed had that been decedent's intention.
11 A-4562-13T1

B&H by submitting — every year from 2001 until his death —

investment status sheets to the Export-Import Bank of Korea, a 

quasi-governmental entity, reflecting that he made a direct 

overseas investment of $900,000 in B&H and that he held a 40.8% 

interest in B&H. Even if any substance could be found in the 

only direct evidence provided by defendant — his self-serving 

accounts of discussions with the decedent8 — it was incapable of 

sustaining defendant's burden of proving a gift and paled in 

comparison to the contrary, written representations made by 

decedent to the Export-Import Bank of Korea. We agree with the 

chancery judge that, as a matter of law, if the matter went to 

trial, defendant would have been unable to sustain his burden of 

showing by clear and convincing evidence that decedent intended 

the $900,000 he wired to B&H to be a gift to defendant; the 

proofs were so one-sided that plaintiff was entitled to summary 

judgment.

In his last argument, defendant contends that the judge's 

grant of authority to the administrator exceeded what was 

 

8 See Metropolitan Life Ins. Co., supra, 136 N.J. Eq. at 592 

(recognizing that "uncorroborated testimony of the donee 

claiming a gift must be carefully scrutinized"). We are 

cognizant that decedent's widow testified at her deposition that 

decedent said the $900,000 transfer was a gift, but we are also 

mindful that she filed an estate tax return that represented 

decedent owned, at the time of his death, a 40.8% interest in 

B&H.
12 A-4562-13T1

necessary under the circumstances. The judge's May 8, 2014 

order specifically authorized the administrator:

to perform all acts of estate administration, including but not limited to: marshaling the assets located in New Jersey; 

obtaining from [defendant] an accounting of 

the Estate's New Jersey assets and his 

management of B&H and its related entities; 

obtaining from [defendant and his wife] an 

accounting of all gifts they received from 

[d]ecedent; obtaining information from 

[defendant] concerning the nature and extent 

of the Estate's interest in Tazz Mall, LLC, 

B&H Design and Construction Co., LLC[,] and 

any other entities; filing a lawsuit, if 

necessary . . . to compel such accountings 

and related discovery and filing all 

necessary tax returns as required by law and 

arrange for payment of any gift taxes, New 

Jersey and federal estate taxes that may be 

due with respect to the Estate's New Jersey 

assets or any gifts or loans made by 

[d]ecedent.

The scope of the authority granted the administrator was 

not raised until defendant moved for a stay pending appeal. The 

issue was discussed, but the judge chose not to make any 

alteration in the earlier order. In denying the motion for a 

stay, however, the judge did not preclude a future application 

from defendant to modify the order. This invitation was not 

accepted; defendant instead presses the point here.

Because the chancery judge was not given the opportunity to 

reconsider the scope of the authority granted the administrator, 

we choose not to consider the issue in the first instance. See
13 A-4562-13T1

State v. Robinson, 200 N.J. 1, 19 (2009) (observing that "[t]he 

jurisdiction of appellate courts rightly is bounded by the 

proofs and objections critically explored on the record before 

the trial court by the parties themselves"). In declining to 

consider the issue, we do not mean to suggest defendant may not 

seek or, for that matter, may not be entitled to relief from the 

chancery judge following our disposition of this appeal; we hold 

only that our consideration of the scope of the May 8, 2014

order is premature.

9

Affirmed.

 

9 We also denied defendant's motion for a stay except that we 

restrained the administrator from "disseminat[ing] any 

information" obtained from the parties pending further order.

Despite this appeal's disposition, which would ordinarily 

terminate the partial stay, we nevertheless will permit the 

limitations we placed on the administrator to remain in effect 

for thirty days from today's date, after which it shall 

automatically expire unless extended by the chancery judge. We 

do this solely to allow for a prompt but unhurried motion 

regarding the scope of the May 8, 2014 order that defendant may 

now choose to file in the trial court.