SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3375-17T2

IN THE MATTER OF THE

ESTATE OF SEBASTIAN

BENENATI, Deceased.

_________________________

Argued January 16, 2019 – Decided May 29, 2020

Before Judges Fuentes, Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Probate Part, Middlesex County, 

Docket No. 246163.

Andrea J. Sullivan argued the cause for appellants 

Marie A. Martini and Ann V. Benenati (Greenbaum, 

Rowe, Smith & Davis LLP, attorneys; Andrea J. 

Sullivan and Charles J. Vaccaro, of counsel and on the 

briefs).

Alicyn B. Craig argued the cause for respondents 

Donna Massoni and Mary Benenati (McCusker, 

Anselmi, Rosen & Carvelli, PC, attorneys; Alicyn B. 

Craig and Assad K. Siddiqi, of counsel and on the 

brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE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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Sebastian and Mary Benenati were husband and wife and had three 

daughters, Marie A. Martini, Ann V. Benenati, and Donna R. Massoni. 

Sebastian

1 died on August 9, 2014, at age ninety-one. In an order dated 

September 2, 2014, the Middlesex County Surrogate admitted to probate 

Sabastian's last Will and Testament dated February 3, 1986, issued Letters 

Testamentary to his wife Mary, and authorized her "to administer the estate of 

the decedent agreeably to said Will[.]" 

On March 15, 2017, petitioners Ann and Marie filed a Verified Complaint

and Order to Show Cause (OTSC) in the Middlesex County Chancery Division, 

Probate Part, against respondents, their mother Mary and sister Donna, seeking 

to vacate the September 2, 2014 order of probate. Upon receipt of petitioners' 

verified complaint and OTSC, respondents' counsel sent petitioners' counsel a 

"safe harbor" letter dated May 31, 2017, apprising them that this suit was 

substantively meritless and procedurally barred. Pursuant to Rule 1:4-8 and 

N.J.S.A. 2A:15-59.1, respondents demanded that petitioners adjourn the 

scheduled return hearing date of the OTSC or withdraw and dismiss the verified 

complaint. 

 

1

 Because some of the parties have the same last name, we will refer to them by 

their first name to avoid confusion. We do not intend any disrespect. 
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Respondents' counsel's letter formally memorialized the substance of a 

telephone conversation she had with one of the attorneys who represented 

petitioners in this case. Respondents' counsel cautioned petitioners' counsel

that the cause of action to vacate the 1986 Will was predicated on the validity 

of a 2013 Will, which petitioners obtained through fraudulent and dishonest 

conduct. Respondents' counsel emphasized that petitioners' attempt to probate 

the 2013 fraudulent Will in Kings County, New York in December 2014 was 

thwarted when they stipulated before the New York court in October 2015 to 

pursue their rights in New Jersey. By that time, Mary had probated the 1986 

Will in this State. 

Respondents' counsel also noted that petitioners' verified complaint did 

not specify whether the relief they sought was predicated on Rule 4:85-1 or Rule

4:50. In this respect, respondents' counsel argued that petitioners had not 

provided a reasonable basis or plausible explanation for bringing this legal 

challenge over two years after their mother probated their late father's 1986 Will.

The safe harbor letter included a detailed history of the events that preceded 

Sebastian's demise and admonished counsel that petitioners were well aware of 

these events.
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In January 2011, Sebastian and Mary, both eighty-seven years old at the 

time moved in with their daughter Donna and her husband, who became their 

sole caregivers. Petitioners rarely visited their parents. One day in December 

2013, Marie and her husband arrived unannounced at Donna's house during a 

time of day when Sebastian and Mary were still asleep. Marie woke them and 

told them to get dressed because she was taking them out to breakfast. Marie 

told her mother that her sister Donna was aware of this and was alright with 

them going out of the house for a while. Mary was concerned, however, since 

Donna, as Sebastian's caregiver, knew what time Sebastian needed to take his 

medications. Sebastian was medically fragile around this time. He had been 

hospitalized in the cardiac intensive care unit at Robert Wood Johnson 

University Hospital and had been in a number of physical rehabilitation centers.

The breakfast outing turned out to be a ruse. Marie took her elderly, 

medically fragile parents to the offices of a New York attorney for the purpose 

of drafting and executing a will. In these documents, Sebastian and Mary 

ostensibly bequeath their entire estate to petitioners. In December 2014, 

following the death of their father, petitioners commenced an action to probate 

the 2013 Will in the New York courts. However, because Mary probated the 
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1986 Will in September 2014 in a New Jersey court, petitioners stipulated before 

the New York court to resolve that matter first.

Petitioners' OTSC and verified complaint came for oral argument before 

Judge Arthur Bergman on June 23, 2017. Petitioners' counsel argued that the 

2013 Will revoked the 1986 Will. Our de novo review of the record confirms 

that petitioners' legal position was frivolous. Sebastian did not have

testamentary capacity at the time he executed the 2013 Will and Trust. 

Respondents' counsel correctly argued that petitioners were barred from 

bringing this action under Rule 4:85-1, which provides:

If a will has been probated by the Surrogate's Court or 

letters testamentary or of administration, guardianship 

or trusteeship have been issued, any person aggrieved 

by that action may, upon the filing of a complaint 

setting forth the basis for the relief sought, obtain an 

order requiring the personal representative, guardian or 

trustee to show cause why the probate should not be set 

aside or modified or the grant of letters of appointment 

vacated, provided, however, the complaint is filed 

within four months after probate or of the grant of 

letters of appointment, as the case may be, or if the 

aggrieved person resided outside this State at the time 

of the grant of probate or grant of letters, within six 

months thereafter. If relief, however, is sought based 

upon [Rule] 4:50-1 (d), (e) or (f) or [Rule] 4:50-3 (fraud 

upon the court) the complaint shall be filed within a 

reasonable time under the circumstances. The 

complaint and order to show cause shall be served as 

provided by [Rule] 4:67-3. Other persons in interest 
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may, on their own motion, apply to intervene in the 

action.

[(Emphasis added).]

Judge Bergman correctly held that petitioners were barred under Rule

4:85-1 because they did not contest the 1986 Will within six months after it was 

probated and did not file the complaint within a reasonable time under the 

circumstances. Judge Bergman found that petitioners "knew" of the existence 

of the 1986 Will and nevertheless sought to probate the 2013 Will in New York, 

as reflected in the 2015 stipulation. The judge noted that petitioners filed the 

OTSC and verified complaint in March 2017, "[w]hich is at least two years more 

than the original [New York] filing." The judge also found petitioners did not

provide a reasonable explanation for failing to take timely legal action in New 

Jersey. In this case, Rule 4:85-1 reduced the timeframe to attack the validity of 

a probated will under Rule 4:50-1 (a), (b), and (c) from one year to six months. 

In re Estate of Schifftner, 385 N.J. Super. 37, 42 (App. Div. 2006). Based on 

these indisputable facts, we discern no legal basis to interfere with Judge 

Bergman's decision to summarily dismiss petitioners' complaint as untimely 

under Rule 4:85-1. 

Judge Bergman also had a sufficient basis to impose the sanctions allowed 

pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1. Respondent's safe harbor letter 
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described in detail the frivolous nature of petitioners' legal position. Once 

appropriate notice was received appraising petitioners and their counsel that 

they lacked a "good faith" basis to proceed, the litigation became frivolous. 

DeBrango v. Summit Bancorp, 328 N.J. Super. 219, 228 (App. Div. 2000). 

Indeed, as we recently noted, "litigation may become frivolous, and therefore 

sanctionable, by continued litigation over a meritless claim, even if the initial 

pleading was not frivolous or brought in bad faith." Bove v. AkPharma Inc., 

460 N.J. Super. 123, 152 (App. Div.), certif. denied, 240 N.J. 7 (2019). Here, 

the record shows petitioners continued to pursue their untenable claims and 

declined the opportunity offered by respondents' counsel in the safe harbor 

letter. 

Affirmed.