SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0672- 22 IN THE MATTER OF THE ESTATE OF JOSEPH WARNOCK, an incapacitated person.

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Submitted May 6, 2024

– Decided August 22, 202 4 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an order granti ng summary judgment invalidating the July 13, 2017 last will and testam ent of the deceased, Joseph NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0672

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Warnock, and directing that the December 19, 2006 l ast will and testament be admitted to probate. We affirm. We glean the facts from the summary judgment recor d, viewing the facts in the light most favorable to appellant as the non-movin g 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 2 006 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 execu ted a new last will and testament (the 2017 will), naming Laurie Vanece k and William Vanecek as his beneficiaries. Warnock was predeceased by Cunh a 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 C ounty judge based upon a March 9, 2017 report prepared by Dr. M artin 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 file d in Monmouth County.3 A- 0672

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Turkus sought the following relief: (1) the revoca tion 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 D eGraff to provide a full accounting of Cunha's and Warnock's finances since December 19, 2006. DeGraff filed an answer contesting most of the reli ef 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 200 6 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 move d for summary judgment to invalidate the will and to probate the 2006 w ill . 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 a sserting Warnock had testamentary capacity when he executed the 2017 wil l

. Turkus, however, did4 A- 0672

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not file a responding statement of statement of dispute d 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 em ail were unsuccessful, the motion judge proceeded with oral argument. Nonet he less, the judge considered the late opposition. Following oral argument, in a well-reasoned oral op inion, the motion judge granted DeGraff's motion for summa ry judgment, finding Warnock lacked both the testamentary capacity to ex ecute the 2017 will and to revoke the 2006 will. Accordingly, the motion judg e in validated 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 reco rd to show that Warner lacked testamentary capacity; and therefore, summary judgm ent should not have been granted. Tukus relied on a one-page expert report dated Sept ember 30, 2022 submitted on the morning of the hearing date. The motion judge denied Turkus's motion for reconsideration explaining th e summary judgment motion was "correctly decided on the law and facts" and not opp osed in accordance with the court rules. This appeal ensued.5 A- 0672

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On appeal, Turkus reasserts Warnock had the requisi te testamentary capacity at the time he executed the 2017 will. Tu rkus 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, an swers
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 (202 1) (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) (quo ting 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).6 A- 0672

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Having reviewed the record and the applicable lega l principles, we are satisfied the judge correctly decided the motion fo r 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 state ment of material facts were properly deemed admitted by the motion j udge 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 ar gument 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 consider ed "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 con clusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.'" Brae Asset Fun d, L.P. v. Newman, 327 N.J Super. 129, 134 (App. Div. 1999) (quoting Unite d States Pipe & Foundry Co. v. American Arbitration Ass'n, 67 N.J. Super. 3 84, 399-400 (App. Div. 1961)). Turkus's late opposition asserted that Warnock had the testamentary7 A- 0672

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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 gen uine issue of material fact." Heyert v. Taddese, 431 N.J. Super. 388, 414 (App. D iv. 2013). Also, Turkus's allegation wa s not enough to defeat summary judgment; as the non-moving party, Turkus "must produce sufficient evidence to reaso nably 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 "i nsufficient to defeat [a] summary judgment motion"). In opposing the summary judgment motion, Turkus did not submit competent evidential material s to support her contention that Warnock had the testamentary capacity to execut e the 2017 will. Given the record, Turkus's bald assertion regarding testamentar y capacity wa s insufficient to defeat summary judgment. Therefore, there was n o 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).8 A- 0672

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Affirmed.