Appellate Division Affirms Invalidating 2017 Will on Motion for Summary Judgment
In re Estate of Warnock, Docket No. A-0672-22 (N.J. Super. App. Div. Aug. 22, 2024)
This appeal affirmed summary judgment on a claim to invalidate a will.
The plaintiff, Betty Ann Turkus, was the daughter of the decedent, Joseph Warnock. The decedent left two wills.
The 2006 will named his wife as the beneficiary. In the event she predeceased him, the 2006 will provided that the wife’s daughter from a previous marriage – DeAnna DeGraff — would inherit the estate.
In July 2017, the decedent executed a new last will, naming third parties as beneficiaries. However, in March 2018, the decedent was adjudicated incapacitated based on a doctor report prepared in March 2017, before the July 2017 will was executed.
In the meantime, the decedent’s wife died in January 2018. The decedent was predeceased by her and two adult children.
The decedent passed away at the age of 93 on July 17, 2020. Among his next of kin was his estranged daughter, plaintiff Betty Ann Turkus.
Turkus filed a verified complaint seeking a variety of relief, including: (1) the revocation of the 2006 will; (2) the revocation of the 2017 will; and (3) the distribution of the estate under the laws of intestacy.
DeGraff filed an answer contesting most of the relief 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 sought to admit the 2006 will to probate.
After discovery, DeGraff moved for summary judgment to invalidate the 2017 will and to probate the 2006 will.
In response to the summary judgment motion, Turkus filed a letter brief with no supporting affidavit, asserting the decedent had testamentary capacity when he executed the 2017 will. Turkus did not file a responding statement of statement of disputed material facts in accordance with Rule 4:46-2(b). Moreover, her submissions were untimely, after the trial judge denied her request to adjourn the hearing date.
In addition, Turkus’s counsel did not appear for the scheduled Zoom oral argument. After attempts to reach counsel by telephone and email were unsuccessful, the motion judge proceeded with oral argument. Nonetheless, the trial judge considered the opposition. Following oral argument, the judge granted DeGraff’s motion for summary judgment, finding that the decedent lacked the testamentary capacity to execute the 2017 will. Accordingly, the judge invalidated the 2017 will and directed the 2006 will be admitted to probate.
Turkus moved unsuccessfully for reconsideration. She then appealed.
On appeal, Turkus argued that whether the decedent had testamentary capacity was a question of fact that must be determined at trial and not by summary judgment.
The Appellate Division affirmed, noting that Turkus’s late opposition failed to comply with the procedural requirements of R. 4:46-2. Accordingly, the facts set forth in DeGraff’s statement of material facts were properly deemed admitted by the motion judge pursuant to R. 4:46-2(b).
Further, the appeal court found that the trial judge considered competent evidence. The appellate panel also noted that the decedent had been adjudicated incapacitated in March 2018, based on a report prepared in March 2017 — before the July 2017 Will was executed.
Finally, the Appellate Division explained that, in opposing a motion for summary judgment, bare conclusions without factual support are insufficient.
In opposing the summary judgment motion, Turkus did not submit competent evidential materials to support her contention that the decedent had the testamentary capacity to execute the 2017 will. Turkus’s bald assertion regarding testamentary capacity was insufficient to defeat summary judgment. Therefore, there was no genuine factual dispute warranting a denial of the motion.