SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0672-22 

IN THE MATTER OF 

THE ESTATE OF 

JOSEPH WARNOCK, 

an incapacitated person. 

____________________ 

Submitted May 6, 2024 – Decided August 22, 2024 

Before Judges DeAlmeida and Bishop-Thompson. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Monmouth County, Docket No. P000148-21.

Glenn H. Ripa, attorney for appellant Betty Ann 

Turkus. 

Taff, Davies & Kalwinsky, LLC, attorneys for 

respondent Deanna DeGraff (Joel A. Davies, on the 

brief). 

PER CURIAM 

 Appellant Betty Ann Turkus appeals an order granting summary judgment 

invalidating the July 13, 2017 last will and testament of the deceased, Joseph 

NOT FOR PUBLICATION WITHOUT THE 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.
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Warnock, and directing that the December 19, 2006 last will and testament be 

admitted to probate. We affirm. 

 We glean the facts from the summary judgment record, viewing the facts 

in the light most favorable to appellant as the non-moving party. Statewide Ins. 

Fund v. Star Ins. Co., 253 N.J. 119, 125 (2023). Joseph Warnock executed a 

last will and testament on December 19, 2006 (the 2006 will), naming his wife, 

Marie Cunha, as beneficiary. In the event Cunha predeceased Warnock, Cunha's 

daughter from a previous marriage, DeAnna DeGraff, would inherit Warnock's 

estate. 

Eleven years later, on July 13, 2017, Warnock executed a new last will 

and testament (the 2017 will), naming Laurie Vanecek and William Vanecek as 

his beneficiaries. Warnock was predeceased by Cunha on January 20, 2018, and 

his two adult children: Kathleen Warnock Scotto and Jane Warnock. On March 

23, 2018, Warnock was adjudicated incapacitated by an Ocean County judge 

based upon a March 9, 2017 report prepared by Dr. Martin Whiteman. Warnock, 

a Monmouth County resident, passed away at the age of 93 on July 17, 2020. 

He is survived by his estranged daughter, Turkus, and DeGraff. 

Following Warnock's death, Turkus filed a verified complaint in Ocean 

County Probate Court. The complaint was later filed in Monmouth County. 
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Turkus sought the following relief: (1) the revocation of the 2006 will; (2) the 

revocation of the 2017 will; (3) the revocation of the Marie Cunha and Joseph 

Warnock Supplemental Benefits Trust dated March 13, 2017; (4) the distribution 

of Warnock's estate under the laws of intestacy and the appointment of Turkus 

as administrator of Warnock's estate; and (5) directing DeGraff to provide a full 

accounting of Cunha's and Warnock's finances since December 19, 2006. 

DeGraff filed an answer contesting most of the relief sought by Turkus 

but concurred with the request to invalidate the 2017 will on the grounds of 

undue influence and lack of testamentary capacity. DeGraff also sought to admit 

the 2006 will to probate and to permit her to qualify as the executrix of 

Warnock's estate. Lastly, DeGraff's answer sought the dismissal of the verified 

complaint. 

Following the expiration of discovery, DeGraff moved for summary 

judgment to invalidate the will and to probate the 2006 will. A few days prior 

to the May 27, 2022 hearing date, the motion judge denied Turkus's request to 

adjourn the hearing date and the June 8, 2022 trial date. On May 26, Turkus 

filed a letter brief with no supporting affidavit asserting Warnock had 

testamentary capacity when he executed the 2017 will. Turkus, however, did 
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not file a responding statement of statement of disputed material facts in 

accordance with Rule 4:46-2(b). 

Turkus's counsel did not appear for the scheduled Zoom oral argument. 

After attempts to reach counsel by telephone and email were unsuccessful, the 

motion judge proceeded with oral argument. Nonetheless, the judge considered 

the late opposition. Following oral argument, in a well-reasoned oral opinion, 

the motion judge granted DeGraff's motion for summary judgment, finding 

Warnock lacked both the testamentary capacity to execute the 2017 will and to 

revoke the 2006 will. Accordingly, the motion judge invalidated the 2017 will 

and directed the 2006 will be admitted to probate. 

Thereafter, Turkus moved for reconsideration of the May 27 order, 

arguing there was insufficient evidence in the record to show that Warner lacked 

testamentary capacity; and therefore, summary judgment should not have been 

granted. Tukus relied on a one-page expert report dated September 30, 2022 

submitted on the morning of the hearing date. The motion judge denied Turkus's 

motion for reconsideration explaining the summary judgment motion was 

"correctly decided on the law and facts" and not opposed in accordance with the 

court rules. This appeal ensued. 
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On appeal, Turkus reasserts Warnock had the requisite testamentary 

capacity at the time he executed the 2017 will. Turkus further argues the issue 

of whether Warnock had the testamentary capacity to execute the 2017 will is a 

question of fact that must be determined at trial. Unpersuaded by Turkus's 

arguments, we affirm. 

We review a grant of summary judgment de novo, applying the same 

standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That 

standard requires us to "determine whether 'the pleadings, depositions, answers 

to interrogatories and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact challenged and that 

the moving party is entitled to a judgment or order as a matter of law.'" Branch 

v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)). 

"Summary judgment should be granted . . . 'against a party who fails to make a 

showing sufficient to establish the existence of an element essential to that 

party's case, and on which that party will bear the burden of proof at trial.'" 

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal 

analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co., 

234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014). 
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 Having reviewed the record and the applicable legal principles, we are 

satisfied the judge correctly decided the motion for summary judgment because 

Turkus's late opposition failed to comply with the procedural requirements of 

Rule 4:46-2. Accordingly, the facts set forth in DeGraff's statement of material 

facts were properly deemed admitted by the motion judge pursuant to Rule 4:46-

2(b). Notwithstanding the lack of compliance with the rule, it is clear from the 

motion record that the judge considered Turkus's argument regarding Warnock's 

testamentary capacity in executing the will in July 2017 after he was adjudicated 

incapacitated in March 2017. We are, therefore, satisfied the motion judge 

considered "the competent evidential materials" in the light most favorable to 

Turkus despite the lack of compliance with Rule 4:46-2(b). Leang v. Jersey City 

Bd. of Educ., 399 N.J. Super. 329, 357-58 (App. Div. 2008), aff'd in part and 

rev'd in part on other grounds, 198 N.J. 557 (2009). 

 However, "the law is well settled that '[b]are conclusions in the pleadings 

without factual support in tendered affidavits, will not defeat a meritorious 

application for summary judgment.'" Brae Asset Fund, L.P. v. Newman, 327 

N.J Super. 129, 134 (App. Div. 1999) (quoting United States Pipe & Foundry 

Co. v. American Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 

1961)). Turkus's late opposition asserted that Warnock had the testamentary 
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capacity to execute the 2017 will. That assertion was nothing more than a bare 

conclusion with no factual support. A self-serving assertion, unsupported by 

documentary proof, "is insufficient to create a genuine issue of material fact." 

Heyert v. Taddese, 431 N.J. Super. 388, 414 (App. Div. 2013). Also, Turkus's 

allegation was not enough to defeat summary judgment; as the non-moving 

party, Turkus "must produce sufficient evidence to reasonably support a verdict 

in [her] favor." Invs. Bank v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018), 

aff'd and modified by 243 N.J. 25 (2020); see also Sullivan v. Port Auth. of N.Y. 

& N.J., 449 N.J. Super. 276, 279-80 (App. Div. 2017) (explaining that "bare 

conclusions" lacking "support in affidavits" are "insufficient to defeat [a] 

summary judgment motion"). In opposing the summary judgment motion, 

Turkus did not submit competent evidential materials to support her contention 

that Warnock had the testamentary capacity to execute the 2017 will. Given the 

record, Turkus's bald assertion regarding testamentary capacity was insufficient 

to defeat summary judgment. Therefore, there was no genuine factual dispute 

warranting a denial of the motion. 

 To the extent we have not addressed any of Turkus's remaining arguments, 

it is because they lack sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3 (e)(1)(E). 
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 Affirmed.