The Nature of Summary Proceedings in Probate Matters
In re Scuderi, 2015 N.J. Super. Unpub. LEXIS 1646 (App. Div. July 9, 2015)
This case addressed issues pertaining to a guardianship dispute, including the sale of real estate and the removal of the guardian. In particular, defendant Richard Scuderi appealed from the order authorizing the listing for sale of certain property and dismissing his counterclaim to have plaintiff Maryanne Scuderi Mantz removed as guardian of their father, Henry Scuderi. Id. at *1.
In 2011, Henry Scuderi suffered a major stroke, which rendered him paralyzed on the right side of his body. Id. He was also unable to stand or walk unattended, or to speak clearly. Id. Plaintiff sought to have Henry declared incapacitated and become his guardian. Defendant opposed that application and argued that he should be named guardian. Id.
After a trial, the trial judge found Henry to be an “incapacitated person . . . unfit and unable to govern himself and manage his affairs[.]” Id. at *2. He appointed plaintiff as guardian in part because Henry had named her as the alternate executor of his estate. Id. The trial court required plaintiff to seek court approval prior to disposing of Henry’s real property. Id.
Plaintiff then applied for authorization to purchase Henry’s rental property. Id. Plaintiff offered $331,000, which was the average of three appraisals she acquired. Id. In support of her application, she provided documentation noting that Henry’s continued care and treatment were depleting his liquid assets. Id.
Defendant opposed that sale and again questioned plaintiff being appointed guardian. Id. He offered a market analysis suggesting a price of $449,000. Id. at *3.
The judge held a hearing and later authorized plaintiff to sell the property, but not to herself. Id. The home was subsequently listed for $379,000, a buyer offered to purchase it for $355,000, which the court accepted. Id. The net amount to the estate was similar to plaintiff’s original offer. Id.
Plaintiff then filed another action, for permission to sell Henry’s residence. Id. She asserted that Henry was unlikely to return to his residence, his care was approximately $4000 a month, and she continued to pay considerable carrying costs for that property. Id. at *3–4.
Defendant opposed the sale, and again requested that the court remove plaintiff as Henry’s guardian and appoint him instead. Id. at *4.
The trial judge noted that Henry’s estate had become reduced over time, and questioned whether a new guardianship trial to resolve defendant’s claims would unnecessarily further reduce the estate. Id. The judge then issued authorized plaintiff to sell Henry’s residence and dismissed defendant’s claims requesting removal and replacement of the guardian. Id. at *4-5. The judge found that a plenary hearing on defendant’s claims was not warranted since it would unnecessarily further deplete Henry’s estate, and because defendant was raising the same arguments that had previously been decided. Id. at *5.
Defendant appealed. He argued the trial court erred in refusing to conduct a plenary hearing. Id. He argued that there were genuine issues of material fact regarding plaintiff’s self-dealing, wasting of assets, and Henry’s care. Id.
The Appellate Division began by explaining that:
The decision to remove a fiduciary is left to the sound discretion of the court and will not be disturbed in the absence of manifest abuse. In re Trust for the Benefit of Duke, 305 N.J. Super. 408, 438 (Ch. Div. 1995), aff’d o.b., 305 N.J. Super. 407 (App. Div.), certif. denied,151 N.J. 73 (1997). A court has abused its discretion “if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment.” Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).
Removal of a fiduciary is an extraordinary remedy and an application to remove one is only granted sparingly. See Braman v. Cent. Hanover Bank & Trust Co., 138 N.J. Eq. 165, 196-97 (Ch. 1946). Courts are reluctant to remove a fiduciary acting “in good faith, with ordinary discretion and within the scope of his [or her] powers[.]” Connelly v. Weisfeld, 142 N.J. Eq. 406, 411 (E. & A. 1948). While a fiduciary can be removed for acts done in breach of trust, see Clark v. Judge, 84 N.J. Super. 35, 62 (Ch. Div. 1964), aff’d o.b., 44 N.J. 550 (1965), but the applicant seeking removal must produce competent evidence demonstrating misconduct or other potential harm to the trust. In re Estate of Hazeltine, 119 N.J. Eq. 308, 316-17 (Prerog. Ct.), aff’d, 121 N.J. Eq. 49 (E. & A. 1936).
Id. at *6–7.
The Appellate Division then explained the nature of summary proceedings in probate matters: “Rule 4:83-1 designates that ‘all actions in the Superior Court, Chancery Division, Probate Part, shall be brought in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to [Rule] 4:67.’” Id. at *7. In turn, “probate matters are specifically subject to Rules governing expedited summary actions when in the trial court.” Citing R. 4:67-5, the court continued:
Actions brought in a “summary manner” are distinguishable from summary judgment actions because in a summary action, the court makes findings of fact and accords no favorable inferences to the action’s opponent. O’Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997), appeal dismissed, 157 N.J. 537 (1998). If the court is “satisfied with the sufficiency of the application, [it] shall order defendant to show cause why final judgment should not be rendered for the relief sought.” Courier News, supra, 358 N.J. Super. at 378 (quoting R. 4:67-2(a)). Furthermore, summary actions are specifically designed to be expeditious and avoid plenary hearings.
Id. at *7–8.
As a result, “judges sitting in probate on summary proceedings have broad discretion in determining the genuine nature of the factual dispute and whether the issue may merit a plenary hearing.” Id. at *8.
Under these standards, the Appellate Division concluded that the trial judge reasonably exercised his discretion in determining that a plenary hearing was not warranted. Id. at *9–10.