SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3670-20

IN THE MATTER OF THE 

ESTATE OF ALFRED 

IAPALUCCI, SR., Deceased.

_________________________

Submitted September 13, 2022 – Decided October 5, 2022

Before Judges Messano and Gummer.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Cape May County, Docket Nos. P000100-20 and P-000101-20.

Frank DiDomenico, attorney for appellants/crossrespondents.

Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi 

& Gill, attorneys for respondent/cross-appellant (Elliott 

J. Almanza, of counsel and on the briefs).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3670-20

Alfred G. Iapalucci, Sr. (Al), died on March 12, 2020, two weeks before 

his ninety-ninth birthday.1In the 1970s, Al purchased approximately ten acres 

of land in Middle Township and over the ensuing years worked to build his 

business—a mobile home park—on the property. Although Al retained title to 

the real estate in his own name, he formed a corporation, A&J Mobile Home 

Court, Inc. (A&J), to operate the business, and Al's eldest son, Alfred G. 

Iapalucci, Jr. (Fred), ran the mobile home park with Al. Over the years, Al 

deeded small percentages of his ownership in the real property to Fred and his 

wife, Cindy. 

In 2012, Fred accompanied his father to the law office of John Callinan, a 

retired judge and friend of Al and Fred. Fred watched Al execute a will (the 

Will), power of attorney and advance medical directive in Callinan's office, 

witnessed by Callinan and his wife, who was Callinan's secretary. Callinan gave 

Al the original Will and an unexecuted copy. After Al's death, however, the 

Will could not be found. Fred filed a caveat with the Cape May County 

Surrogate to prevent the filing of any "writing purporting to be [Al's] last will 

and testament." 

1 Because some family members share the same last name, we sometimes refer 

to them by their first names to avoid confusion and for ease of understanding. 

We intend no disrespect by this informality.
3

A-3670-20

Al's daughter, Lynda Gazzara, joined by Al's three other children—Debra 

Tinsley, Lisa Iapalucci, and James Iapalucci, Sr. (collectively, the Siblings)—

filed an order to show cause and verified complaint claiming they had no 

knowledge that their father had executed a will. The Siblings sought to 

discharge the caveat filed by Fred, have the Probate Court declare Al died 

intestate, and appoint Lynda administratrix of the estate. 

Fred, however, obtained a copy of the executed Will from Callinan after 

Al's death; Fred filed his own verified complaint on the same day the Siblings 

filed theirs. Fred alleged the Siblings "found the original executed Will, w[ere] 

not pleased with its contents, and took it, along with the unexecuted copy." 

Among other things, the Will named Fred and Cindy executor and alternate 

executrix of Al's estate and bequeathed all real property Al owned, as well as 

his interests in A&J, to Fred; if Fred predeceased Al, the real property was 

bequeathed to Cindy. Fred's verified complaint asked the court to order 

production of the original Will, or, alternatively, to probate Fred's copy of the 

Will.

2

Both sides moved for summary judgment. The judge initially accepted 

the Siblings' argument that because the Will had been in Al's possession and 

2

 The two actions were heard together, although never formally consolidated. 
4

A-3670-20

now could not be found, a rebuttable presumption arose that Al revoked the will. 

See, e.g., In re Will of Davis, 127 N.J. Eq. 55, 57 (E. & A. 1940) ("If such a will 

was last seen in the custody of the testatrix or she had access to it[,] the fact that 

it cannot be found after her death raises the presumption that she destroyed it 

animo revocandi."). 

The judge rejected Fred's argument that the motion record demonstrated 

as a matter of law the original Will had been stolen, and, pursuant to N.J.S.A. 

3B:3-2 and -3, the executed copy of the Will should be admitted to probate.3 

The judge's April 1, 2021 order incorporated these findings and ordered a 

"factual hearing." 

3

 N.J.S.A. 3B:3-2 sets forth the requirements for wills and holographic wills. 

N.J.S.A. 3B:3-3 provides:

Although a document or writing added upon a 

document was not executed in compliance with 

N.J.S.[A.] 3B:3-2, the document or writing is treated as 

if it had been executed in compliance with N.J.S.[A.] 

3B:3-2 if the proponent of the document or writing 

establishes by clear and convincing evidence that the 

decedent intended the document or writing to 

constitute: (1) the decedent's will; (2) a partial or 

complete revocation of the will; (3) an addition to or an 

alteration of the will; or (4) a partial or complete revival 

of his formerly revoked will or of a formerly revoked 

portion of the will.
5

A-3670-20

Fred moved for reconsideration. He argued that because the court 

recognized material disputed facts existed as to whether someone stole the Will, 

it was a mistake to conclude Al had exclusive possession of it, and, in turn, that 

the presumption of revocation applied. The judge agreed, and his May 5, 2021 

order stated all issues would be resolved at trial.

The trial took place over two days, with the judge hearing from nine

witnesses: Fred and his four siblings, Fred's daughter Andrea, Al's neighbor

William Sturm, Al's accountant Harold Livingston, and Callinan. In a written 

decision following trial, the judge noted the court's "first task" was to determine 

whether Al maintained exclusive possession of the Will from its execution until 

its disappearance, and then "regardless of the findings regarding exclusive 

possession, . . . whether the . . . Will reflected Al's final testamentary intent." 

The judge exhaustively reviewed the evidence.

He noted none of the siblings disputed that the "Will was properly 

executed on August 3, 2012," and all of them, including Fred, acknowledged Al 

"had the requisite mental capacity that would be required to . . . revoke the Will 

. . . if that is what occurred." The judge found that all the siblings "organized a 

care schedule to look after their father as his health began to decline" during the 

last two years of his life, and the judge recounted their testimony regarding 
6

A-3670-20

access to Al's locked closet, and a safe and locked metal box he kept in the 

closet. 

The judge noted Lynda's testimony that during the last days of Al's life, 

she retrieved the power of attorney and advance medical directive, both executed 

at the same time as the Will, from Al's lockbox. The judge acknowledged "the 

indisputable conclusion that [there] were some nights w[h]ere the Siblings could 

have access[ed]" the places where the Will may have been stored. He concluded 

"Al did not retain exclusive possession of the . . . Will from the time it was 

executed until it went missing."

The judge then reviewed the evidence regarding Al's "testamentary 

intent," citing extensively from the testimony of Fred, Sturm, Livingston, and 

Callinan. He found that Fred was the "primary caretaker" of his father, and, 

together with Cindy, "looked after, cooked for, and spent all their time with Al." 

The judge further concluded, "Al and Fred were extremely close, and . . . Al's 

behavior and comments indicated that he planned to leave Fred with full 

ownership" of the business. The judge "was impressed with the credibility and 

consistency of Fred's testimony, as well as his witnesses," and "[w]hile [he] 

acknowledge[d] the good qualities of the Siblings . . . , overall, [the judge] was 

less impressed with their testimony and found it less credible." The judge
7

A-3670-20

concluded all the evidence "support[s] the assertion that Al's testamentary intent 

remained unchanged until the end of his life." The judge ordered the Surrogate 

to admit the Will to probate, and this appeal followed.

Before us, the Siblings argue in three separate point headings variations 

on the same theme, specifically that the trial evidence did not support certain 

findings made by the judge, and, more generally, did not clearly and 

convincingly support the judge's conclusion that the Will reflected Al's final

testamentary intent. Fred argues the judge properly found the presumption of 

revocation did not apply and, even if it did, the evidence clearly and 

convincingly overcame the presumption and demonstrated the Will reflected 

Al's "final testamentary intent." Fred also filed a defensive cross-appeal, 

contending that given the "one-sided" evidence in the motion record, the judge 

should have granted summary judgment in his favor without the need for a trial, 

and we should reverse the judge's April 1, 2021 order.

Our standard of review following a bench trial is well-known. 

Final determinations made by the trial court 

sitting in a non-jury case are subject to a limited and 

well-established 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[.]" 
8

A-3670-20

[Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150, 169 

(2011) (alteration in original) (quoting In re Tr. Created 

By Agreement Dated Dec, 20, 1961 by Johnson, 194 

N.J. 276, 284 (2008)).]

In reviewing the judge's findings, "[w]e do not weigh the evidence, assess the 

credibility of witnesses, or make conclusions about the evidence." Mountain 

Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) 

(alteration in original) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). 

However, we owe no deference to the judge's interpretation of the law and the 

legal consequences that flow from established facts. Manalapan Realty LP v. 

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 

118 N.J. 595, 604 (1990)).

Having considered the arguments in light of the record and applicable 

legal standards, we affirm, albeit for slightly different reasons than expressed 

by the trial judge, see Hayes v. Delamotte, 231 N.J. 373, 387 (2018) ("A trial 

court judgment that reaches the proper conclusion must be affirmed even if it is 

based on the wrong reasoning." (citing Isko v. Plan. Bd. of Livingston, 51 N.J. 

162, 175 (1968))). We dismiss the cross-appeal. 

The Siblings first argue the judge's finding that Al stored the Will in the 

metal lockbox, along with the power of attorney and the advance medical 

directive, was not supported by substantial credible evidence in the record, and 
9

A-3670-20

they argue this erroneous finding was critical to the judge's conclusion that Al 

did not retain exclusive control over the Will after its execution and until his 

demise. However, there was ample evidence that Al did store the Will in the 

metal lockbox. More importantly, the only "critical" finding made by the judge 

was that regardless of the precise storage location for the Will—the safe or the 

metal lockbox—both were in Al's locked closet, and it was undisputed that 

several people, including some of the Siblings, regularly accessed the closet.

We part company with the judge and with the parties as to whether the 

presumption of revocation required a finding that Al had exclusive control of 

the Will. As already noted, our courts have said if a will was last seen in the 

possession of the decedent and cannot be found upon the decedent's death, there 

is a presumption the decedent destroyed the will with the intent to revoke it. 

Davis, 127 N.J. Eq. at 57. The trial evidence revealed that as far as anyone 

knew, the Will was last in Al's possession before his death.

None of the cases cited by Fred, nor any cases found in our research, 

require the decedent necessarily have "exclusive" possession of a lost will for

the presumption of revocation to arise. See, e.g., ibid. ("If such a will was last 

seen in the custody of the testatrix or she had access to it[,] the fact that it cannot 

be found after her death raises the presumption that she destroyed it animo 
10 A-3670-20

revocandi."); In re Will of Bryan, 125 N.J. Eq. 471, 473–74 (E. & A. 1939) 

("The law . . . applicable to . . . lost wills is well defined. If such a will was last 

seen in the custody of the testatrix or she had access to it[,] the fact that it cannot 

be found after her death raises the presumption that she destroyed it animo 

revocandi." (emphasis added)); Campbell v. Smullen, 96 N.J. Eq. 724, 727 (E. 

& A. 1924) ("It is a well-established principle that when a will is left in the 

hands of the testator[] and is not found at the time of his death, a presumption 

of a revocation arises."); In re Will of Calef, 109 N.J. Eq. 181, 185 (N.J. Prerog. 

Ct. 1931) ("If the will is proved to have been in the testator's possession, and 

cannot afterwards be found, it will be presumed that he destroyed it, animo 

revocandi."), aff'd. o.b., 111 N.J. Eq. 355 (E. & A. 1932). None of these cases 

stand for the proposition that the presumption of revocation arises only if the 

testator has exclusive possession of a will without the possibility of access by 

others.

However, whether the presumption of revocation applied or not, we 

disagree with the Siblings' remaining two points. As best we can discern, the 

Siblings argue Fred failed to muster "clear and convincing" evidence to 

overcome any presumption of revocation and to support the judge's conclusion 

that the copy of the Will evidenced Al's final testamentary intent.
11 A-3670-20

At common law, the presumption of revocation was rebuttable by 

evidence that was "clear, satisfactory and convincing and the burden [wa]s on 

the proponents." Bryan, 125 N.J. Eq. at 474. Historically, some courts said such 

evidence "must be sufficient to exclude every possibility of a destruction of the 

will by" the testator. Ibid. (citing In re Estate of Willett, 46 A. 519 (N.J. Prerog. 

Ct. 1900)). However, that onerous standard is inconsistent with more recent 

legislation aimed at implementing a decedent's testamentary intent and making 

it easier to avoid intestacy by probating a technically deficient will. See

N.J.S.A. 3B:3-3 (requiring the proponent of a will not executed in compliance 

with N.J.S.A. 3B:3-2 to "establish[] by clear and convincing evidence that the 

decedent intended the document . . . to constitute" his will) (emphasis added).

The clear and convincing standard also applies to one seeking to probate

a lost will. "The term 'lost will' includes a will 'which may be in existence but 

which cannot be found so as to be produced for probate.'" In re Estate of Ehrlich, 

427 N.J. Super. 64, 83 (App. Div. 2012) (Skillman, J., dissenting) (quoting 3 

Bowe-Parker, Page on Wills, §§ 27.1 at 433 (3d ed. 2004)). "[W]e require the 

proponent of a lost or missing will to establish the supposed intent of the 

document by clear and convincing evidence." Pivnick v. Beck, 326 N.J. Super. 
12 A-3670-20

474, 483–84 (App. Div. 1999) (citing In re Will of Roman, 80 N.J. Super. 481, 

483 (Hudson Cnty. Ct. 1963), aff'd o.b., 165 N.J. 670 (2000)).

In Ehrlich, we construed N.J.S.A. 3B:3-3 to permit the probate of an 

unexecuted copy of will when the original could not be found. 427 N.J. Super. 

at 75. We held: "The fact that the document is only a copy of the original sent 

to decedent's executor is not fatal to its admissibility to probate. Although not 

lightly excused, there is no requirement in N.J.S.A. 3B:3-3 that the document 

sought to be admitted to probate be an original." Ibid. We noted, "in dispensing 

with technical conformity, N.J.S.A. 3B:3-3 imposes evidential standards and 

safeguards appropriate to satisfy the fundamental mandate that the disputed 

instrument correctly expresses the testator's intent." Id. at 74. In "the case of 

admitting a copy of a [l]ast [w]ill to probate" the proof must be "clear, 

satisfactory, and convincing to rebut the presumption of the original's revocation 

or destruction." Id. at 75 (citing Davis, 127 N.J. Eq. at 57). 

In short, whether applying common law principles dealing with 

overcoming the presumption of revocation or applying N.J.S.A. 3B:3-3 liberally 

for its intended remedial purposes to probate a technically deficient will, see id.

at 72, the proponent of an executed copy of a will may successfully probate that 
13 A-3670-20

copy by demonstrating "the instrument reflect[s] the testator's final testamentary 

intent" by clear and convincing evidence. Id. at 73. 

Here, the judge found that regardless of whether the presumption of 

revocation applied, Fred established by clear and convincing evidence that the 

executed copy of the Will reflected Al's final testamentary intent. There was 

substantial support for this conclusion, with little, if any, evidence to the 

contrary. Certainly, given our standard of review, we accept the judge's findings 

and conclusions on this critical point.

Affirmed. The cross-appeal is dismissed.