SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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IN THE MATTER OF THE ESTATE OF THEODORE A. KACZMAREK, D eceased.

___ _______________________

Submitted October 31, 2018

- Decided Before Judges Accurso and Moynihan. On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. 216175. Karen Horbatt, appellant pro se. Kaplin Stewart Meloff Reiter & Stein, PC, attorneys for respondent Denise DeBlasio (Thomas D. Begley, III, on the brief). Kelaher, Van Dyke & Moriarty, attorneys for respondent Barbara Lutz (Peter J. Van Dyke, on the brief).
PER CURIAM Defendant Karen Horbatt appeals from t he entry of summary judg ment admitting decedent Theodore A. Kaczmarek's l ast w ill of November 12, 2014 to probate, directing the Surr ogate of Ocean County to issue letters t estamentary NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Althoug h 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.

November 28, 20182 A

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to plaintiffs and co

- executrices D enise DeBlasio and Barbara Lutz, dism issing defendant's caveat and counterclaim , and denying her request for counsel fees. Finding no error in any of the trial court's rulings, we affirm. The essential facts are undisputed. Defendant was the decedent's niece by marriage. A fter defendant's aunt died , the decedent executed a w ill in 2009 leaving his entire estate to defendant. At the same time, and at defendant's suggestion, the decedent executed a revocable living trust agreement , designat ing defendant as the sole trustee . Both documents were drafted by a lawyer procured for the decedent by defendant. Within a few months of executing the trust agreement, however, the decedent expressed concern about losing control of his assets, and defendant suggested he seek advice from plaintiff DeBlas io, his long

- time friend and financial adviser.
The decedent retained a new lawyer, Will iam Hiering, who drafted a new

w ill for decedent in February 2010 in which he left the sum of $200,000 to defendant, provid ed she did not challenge the w ill, $250,000 to plaintiff Lutz
and divided the remainder of his estate between DeBlasio and another friend.
H ie ring , an experienced estates and trusts lawyer admitted to the bar in 1973 , was not acquainted with the decedent, nor any of the parties , before drawing the decedent's w ill in 2010.3 A

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Hie ring testified at deposition that he drew four w ills for the decedent, the first in 2010, the second in 2011, another in 2012 and the last one in 2014. Relying on notes he took in connection with each of the w ills, Hiering r ecalled the decedent first came to him expressing a desire to revo ke the trust and execute

a new w ill. The decedent advised Hi e ring that the decedent's niece, defendant, was not a blood relative, and that he wished to divide his four million dollar

estate among her and three close friends. Hiering testified the decedent,

a lthough then ninety

- two , was still actively managing his stock portfolio , "day trading basically and doing very well at it." Hiering testified that after speaking at length with the dec edent in connection with that first w ill, he had no concern whatsoever regarding the decedent's competence. Hie ring further testified his opinion of the dec edent's competence never changed during the time he knew him. The dec edent executed three more wil ls, altering the amount of his bequests among his beneficiaries and removing first one friend and then defendant. Specifically as to defendant, the 2011 w ill
increased her share to eighty

- five p ercent of the estate, the 2012 w ill r educed it to fifteen per cent and the 2014 last w ill omitted her entirely. That l as t w ill divided the decedent's entire estate equally between plaintiffs.4 A

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Regarding execution of that 2014 w ill, Hiering testified he noticed no decline in the decedent's menta l capacity, describin g him as "still . . . sharp.
P retty old , but he was still sharp." H iering testified, however, "that physically , [the decedent] had slowed down." Regarding the decedent's decision to leave his entire estate to plaintiffs, Hiering testified "he expressed that he ha d no one
else , that these were people he cared about." The decedent explained that his third friend had moved away and defendant "is not a relative, it's his wife's relative." Defendant conceded both plaintiffs , who , unlike herself, lived nearby , assisted the decedent on a regular basis. De Blasio helped him with his bills and home repairs and Lutz did his grocery shopping and occasionally his laundry and both drove him to appointments and provided him companionship

. Defendant claimed , however, that DeBlasio ab used her position as t he decedent's financial adviser, that Lutz was motivated by greed and that both exercised undue influence over him. She presented an expert report by a psychiatrist, Daniel P. Greenfield, w h o opined , on the basis of t he decedent's medical records, that "[i]t is likely that [ his ] apparent history of several years of dementia leading up to his death

. . . affected his decision

- making capacity and

com petency" in regard to the 2014 w ill and "rendered him less able to resis t5 A

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'undue influence,' if it actually occurred, no t withstanding characterizations of him as firm, rigid, set in his ways, knowing what he wanted , and the like." Ruling first on plaintiffs' motion to strike the report as a net opinion, s ee Estate of Hanges v. Metro. Prop. & Cas. Ins. Co. , 202 N.J. 369, 384

- 85 (2010) , Judge Roe acknowledged the expert's qualifications, but concluded his failure to identify the specific facts in the record on which he based his opinions , s ee Townsend v. Pierre , 221 N.J. 36, 53

- 54 (2015) , or to express any opinion held to a reasonable degree of medical certainty , s ee Johnesee v. Stop & Shop Cos. , 174 N.J. Super. 426, 431 (App. Div. 1980) , rendered the repor t unreliable and inadmissible, se e Vuocolo v. Diamond Shamrock Chems. Co. , 240 N.J. Super. 289, 300 (App. Div. 1990) (explaining "expert testimony is excluded if it is based merely on unfounded speculatio n and unqua nti fied possibilities " ). Reviewing the competent evidence on the motion for summary judgment, Judge Roe concluded there was nothing in the record to support a diagnosis of dementia until shortly before the decedent's death in 2016, over a y ear after he executed his 2014 w ill. Further, defendant acknowledged at deposition she "knew nothing of the circumstances surrou nding the execution of the 2014 w ill or any alleged improprieties" in its genesis or execution , and conceded plaintiffs were long

- time friends of the decedent and appropriate beneficiaries. The judge6 A

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found nothing to contradict a ttorney Hiering's opinion that the decedent possessed testamentary capacity when he executed his last w ill in 2014 , and that defendant's own attempt to have the decedent execute a new power of attorney in her favor shortly before his death belie d her later assertions that the deced ent was incompetent

. J udge Roe similarly rejected defendant's claims of undue influence as without support in the record. Acknowledging that plaintiffs enjoyed "a close personal relationship with the decedent," 1 the judge found nothing in the record
sug gesting "questionable or suspicious circumstances " and "certainly . . . no evidence that they occupied a dominant position over the decedent." Assuming that defendant had presented sufficient evidence to shift the burden to plaintiffs,

s ee In re Estate of Stockdale , 196 N.J. 275, 303 (2008) , which she did not, the judge found the record made plain "any influence the plaintiffs had was not undue ," s ee In re Blake's Will , 21 N.J. 50, 56 (1956 ) ( explaining " influence is not undue in this regard unless it cons titutes moral or physical coercion destructive of free agency. Even persuasion, much less mere suggestion, is not

1 Acknowledging that plaintiff DeBlasio had served as the decedent's "financial adviser," the judge nevertheless rejected defendant's claims of a confidential relationship because the summary judgment record lacked specific facts explaining the term, DeBlasio's duties or how the decedent may have relied on her.7 A

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undue influence either in the legal or the moral sense if freedom of will remains intact. "). The judge further found defendant had not prese nted a prima facie case of fraud , s ee Banco Popular N. Am. v. Gandi , 184 N.J. 161, 17 2

- 7 3 (2005) , and th e doctrine of unjust enrichment, s ee EnviroFinance Group, LLC v. Envtl. Barri e r Co., LLC , 440 N.J. Super. 325, 350 (App. Div. 2015) , had no applicabilit y to this will contest. Because defendant failed to provide either the order or the transcript of the court's oral statement of reasons denying her claim for attorney's fees, we are unable to assess the merits of her claim, and thus do not consider
it. See Cipala v. Lincoln Tech. Inst. , 179 N.J. 45, 55 (2004) (affirming this court's refusal to address an issue based on appellant's failure to include documents necessary for its review in the appendix). Having considered defendant's arguments in light of the record and the applicable law, we affirm in all respects based substantially on Judge Roe's careful and comprehensive opinion delivered from the bench on October 4,
2017. Affirmed.