SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1942-18T2

MARIE ANDRADE,

Plaintiff-Appellant,

v.

GUSTAVO ANDRADE,

Defendant-Respondent.

________________________

Submitted March 10, 2020 – Decided April 30, 2020

Before Judges Messano and Susswein.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Hudson County, Docket No. C000189-17.

Celentano Stadtmauer & Walentowicz LLP, attorneys 

for appellant (Henry C. Walentowicz, on the brief).

Gustavo Andrade, respondent pro se. 

PER CURIAM

In 2012, plaintiff Maria Andrade, then seventy-three-years old, executed 

a deed transferring her home in Jersey City to her son, defendant Gustavo 

NOT FOR PUBLICATION WITHOUT THE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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Andrade, for a nominal fee, and reserving a life estate in her favor. In December 

2017, plaintiff filed a verified complaint and order to show cause seeking to set 

aside the deed, claiming defendant unduly influenced her into transferring the 

property to him. The General Equity judge conducted a bench trial at which 

plaintiff, defendant, and the attorney who prepared and filed the deed, testified. 

The judge concluded that plaintiff failed to prove she and defendant "shared a 

confidential relationship and that there were suspicious circumstances 

surrounding the transfer of the premises[.]" Alternatively, the judge found that 

defendant had rebutted any presumption of "undue influence" by clear and 

convincing evidence. He entered an order dismissing the complaint, and this 

appeal followed.

Before us, plaintiff contends the judge's findings are not supported by the 

credible evidence at trial. She also argues that she lacked any donative intent

when she transferred title to defendant. 

We have considered these arguments in light of the record and applicable 

legal standards. Although the judge failed to specifically address the issue of 

donative intent, we conclude his detailed findings of fact and conclusions of law 

implicitly provide support for the conclusion that plaintiff intended to make an 
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inter vivos gift to her son. The trial judge's other findings and conclusions are 

supported by substantial credible evidence in the record, and we affirm.

I.

We begin by acknowledging the standards that guide our review and by 

setting the intertwined framework of critical legal determinations that control 

resolution of any challenge to the validity of an inter vivos gift. 

"We review the trial court's determinations, premised on the testimony of 

witnesses and written evidence at a bench trial, in accordance with a deferential 

standard." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). 

Final determinations made by the trial court sitting in a 

non-jury case are subject to a limited and wellestablished scope of review: "we do not disturb the 

factual findings and legal conclusions of the trial judge 

unless we are convinced that they are so manifestly 

unsupported by or inconsistent with the competent, 

relevant and reasonably credible evidence as to offend 

the interests of justice[.]" 

[Ibid. (quoting Seidman v. Clifton Sav. Bank, S.L.A., 

205 N.J. 150, 169 (2011)).]

"To the extent that the trial court interprets the law and the legal consequences 

that flow from established facts, we review its conclusions de novo." 

Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 329 (2017) (citing D'Agostino, 

216 N.J. at 182). These standards of review apply in circumstances like those 
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presented here where a purported inter vivos gift is challenged. Pascale v. 

Pascale, 113 N.J. 20, 33 (1988).

"There are three elements of a valid and irrevocable gift." Bhagat v. 

Bhagat, 217 N.J. 22, 40 (2014).

First, there must be actual or constructive delivery; that 

is, "the donor must perform some act constituting the 

actual or symbolic delivery of the subject matter of the 

gift." Second, there must be donative intent; that is, 

"the donor must possess the intent to give." Third, there 

must be acceptance. 

[Ibid. (quoting Pascale, 113 N.J. at 29).] 

Although the party asserting the transfer was a gift has the burden of proof as to 

these elements, when "the transfer is from a parent to a child . . . a presumption 

arises that the transfer is a gift. The presumption does not apply if the parent is 

a dependent of the child." Id. at 41–42. Additionally, the putative donor may 

overcome the presumption through clear and convincing evidence "limited to 

evidence antecedent to, contemporaneous with, or immediately following the 

transfer." Id. at 47.

"An adult donor is generally presumed to be competent to make a gift." 

Pascale, 113 N.J. at 29. However, plaintiff here alleged the deed transfer was 

not the product of her free will, but, rather, the result of undue influence. 

"Undue influence has been described as 'that sort of influence that prevents the 
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person over whom it is exerted "from following the dictates of his own mind and 

will and accepting instead the domination and influence of another."'" In re 

Estate of DeFrank, 433 N.J. Super. 258, 269 (App. Div. 2013) (quoting Pascale, 

113 N.J. at 30). "In respect of an inter vivos gift, a presumption of undue 

influence arises when the contestant proves that the donee dominated the will of 

the donor, or when a confidential relationship exists between donor and 

donee[.]" Pascale, 113 N.J. at 30 (citations omitted).

1

 

1 Although the trial judge analyzed whether there were "suspicious 

circumstances" surrounding the transfer in addition to the existence of a 

"confidential relationship," and although plaintiff on appeal addresses the trial 

evidence as to both findings, the Court has said: 

[w]ith respect to a will, to create a presumption of 

undue influence[,] the contestant . . . must show the 

existence not only of a confidential relationship, but 

also "suspicious circumstances," however "slight." 

Without proof of suspicious circumstances, a 

confidential relationship will not give rise to the 

presumption in the testamentary context. Underlying 

the absence of a requirement of showing suspicious 

circumstances with an inter vivos gift is the belief that 

a living donor is not likely to give to another something 

that he or she can still enjoy. 

[Id. at 30–31 (emphasis added) (citations omitted) 

(quoting Haynes v. First Nat'l Bank, 87 N.J. 163, 176

(1981)).]
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"Among the most natural of confidential relationships is that of parent and 

child." Id. at 34 (citing In re Fulper, 99 N.J. Eq. 293, 314 (Prerog. Ct. 1926)). 

However, "the mere existence of family ties does not create . . . a confidential 

relationship." Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 401–02 (App. 

Div. 2007) (quoting Vezzetti v. Shields, 22 N.J. Super. 397, 405 (App. Div. 

1952)). Simply put, 

the test for measuring the existence of a confidential 

relationship is "whether the relations between the 

parties are of such a character of trust and confidence 

as to render it reasonably certain that one party 

occupied a dominant position over the other and that 

consequently they did not deal on terms and conditions 

of equality." 

[Id. at 402 (quoting Blake v. Brennan, 1 N.J. Super. 

446, 453 (Ch. Div. 1948)).]

To determine "whether a confidential relationship is present[,]" the 

following factors must be considered: 

[(1)] whether trust and confidence between the parties 

actually exist[; (2)] whether they are dealing on terms 

of equality[; (3)] whether one side has superior 

knowledge of the details and effect of a proposed 

transaction based on a fiduciary relationship[; and (4)]

whether one side has exerted over-mastering influence 

In other words, if plaintiff demonstrated she shared a "confidential relationship" 

with her son, she did not need to prove the deed transfer occurred under 

"suspicious circumstances" in order to benefit from the presumption that 

defendant exerted undue influence. 
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over the other or whether one side is weak or 

dependent. 

[Id. at 402.]

"When the presumption of undue influence arises from an inter vivos gift, 

the donee has the burden of showing by clear and convincing evidence not only 

that 'no deception was practiced therein, no undue influence used, and that all 

was fair, open and voluntary, but that it was well understood.'" Pascale, 113 

N.J. at 31 (quoting In re Dodge, 50 N.J. 192, 227 (1967)). The donee's burden 

becomes particularly onerous if the donor is dependent upon the donee, and the 

gift leaves the donor without any assets or unable to support herself. Ibid.

We consider the judge's factual findings and conclusions given this 

intertwined legal framework.

II.

Our summary of the trial testimony relies on the judge's expressed factual 

findings and gives due consideration to the judge's detailed credibility 

determinations based, in part, on his observations of the witnesses' demeanor. 

The judge found plaintiff's testimony lacked credibility, and defendant's 

testimony was highly credible.

The property consisted of three floors, with plaintiff, a widow, occupying 

the first, and tenants occupying the second and third. Plaintiff had four children,
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two sons and two daughters, who are estranged from each other. Defendant 

lived in the basement, performed substantial repairs on the property without 

compensation and paid $100 per week to plaintiff in rent. Plaintiff and her 

husband, who died in 1993, deeded the property to one daughter in 1991; the 

daughter transferred the property back four years later. Yet again, in 2010, 

plaintiff consulted an attorney who, at her request, drew up a deed to convey the 

property to the same daughter for nominal consideration; however, plaintiff

requested the lawyer not record the deed and it was never recorded.

The same attorney, who testified at trial, drew up the 2012 deed conveying 

the property to defendant and reserving a life estate for plaintiff's benefit. 

Further, the attorney testified that plaintiff was completely lucid and controlled 

the meeting, with defendant saying little. The attorney testified that plaintiff 

consulted him six months later, asking to have the house returned because she 

was "having difficulty with" her son. 

The judge found that defendant reported the rental income from the 

tenants on his tax returns and claimed plaintiff as a dependent. Although 

defendant has a daughter himself, he named plaintiff as the sole beneficiary 

under his will, and a sister as alternate beneficiary.
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The judge concluded that other than proving the indisputable — that 

defendant was her son — plaintiff failed to prove a "confidential relationship" 

existed between the two. He found that plaintiff was "a shrewd person who was 

aware of the nature and objects of her bounty[] and made deliberate decisions 

about the disposition of her real property for calculated purposes." The judge 

noted plaintiff's testimony that she transferred the property to her daughter 

earlier "to protect that asset from any loss 'to the government.'" The judge found 

that when plaintiff made her later decision to transfer the property to defendant, 

"she was certainly aware (if not ultimately misinformed) about the reasons why 

she was taking the action that she did."

The judge noted that defendant asked his mother to transfer the property 

to him, but the requests were not "made in such a way as to force the asset's 

transfer." The judge specifically found that plaintiff and defendant "were able 

to, and did, live independently from each other and there was no proof . . . that 

[plaintiff] was so dependent upon the presence and involvement of her son for 

her own livelihood." The judge concluded plaintiff "stood in a more dominant 

position over her son." 

Plaintiff contends the evidence of domination was to the contrary, noting 

that defendant accompanied her to the attorney's office, prepared her tax returns 
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and declared plaintiff as a dependent on his own returns, and received the only 

sizeable asset of plaintiff's estate, to the detriment of her other children. 

However, we defer to the trial judge's ability to observe the witnesses, in 

particular their demeanor and the manner in which they answered questions. 

Plaintiff bore the burden of proving "the existence of a confidential relationship, 

[was] more probable than not." Ostlund, 391 N.J. Super. at 403 (citing Biunno, 

Current N.J. Rules of Evidence, cmt. 5 on N.J.R.E. 101(b)(1) (2007)). The 

judge's conclusion that she failed to meet this burden is supported by "the 

competent, relevant and reasonably credible evidence" and does not "offend the 

interests of justice[.]" D'Agostino, 216 N.J. at 182 (alteration in original). 

As already noted, the judge failed to explicitly find that plaintiff intended 

to make a gift to her son by transferring the property while retaining a life estate. 

Plaintiff contends the evidence demonstrates a lack of "donative intent" on her 

part, because she continued to collect the tenants' rents and pay for expenses 

associated with the property, and her will left the property to her four children.2

Although the judge failed to make explicit findings on this point, we 

conclude the finding of donative intent is implicit when one considers the 

2 We note that plaintiff's testimony about her last will was quite sketchy and 

lacking in any detail. The will was not produced at trial, and plaintiff had no 

idea where it was.
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entirety of the judge's written decision. For example, the judge noted that 

"[plaintiff] was in complete control of the disposition of her property from [its]

initial transfer in 1991, to the retransfer in 1995, to the requested transfer in 

2010, and to the subject transfer in 2012." The judge found that plaintiff made 

the transfer 

to compensate [defendant] for the work [he] performed 

on the premises and for the benefit of his mother. . . .

That work was substantial and involved almost a 

complete renovation of the premises. It was a 

reasonable (and uncontroverted) position that 

[plaintiff] would seek to reward her son for the work

that he contributed to this asset, particularly since 

[plaintiff] provided similar assistance to her other 

children.

There is no reason to disturb these findings, which amply support a 

presumption that the transfer was an inter vivos gift from plaintiff to defendant, 

her son. See Bhagat, 217 N.J. at 41. As the Court made clear

a person who has transferred property to another, which 

raises a presumption that the transferred property was a 

gift, must meet the clear and convincing evidence

standard of proof to rebut the presumption. We also 

hold that the person seeking to rebut the presumption is 

limited to evidence antecedent to, contemporaneous 

with, or immediately following the transfer. 

[Id. at 47 (emphasis added).]
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There was no credible evidence to rebut the presumption, other than plaintiff's 

admitted consultation with the attorney to undo the transfer six months later 

because of unspecified difficulty with defendant. We reject plaintiff's argument 

that the evidence failed to demonstrate that when the transfer was made, it lacked 

a donative intent.

Affirmed.