                            NOT FOR PUBLICATION WITHOUT THE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.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-4878-17T2

IN THE MATTER OF THE
ESTATE OF ANNE L. JELIN,

     Deceased.
___________________________

                Argued September 18, 2019 – Decided October 3, 2019

                Before Judges Whipple, Gooden Brown, and Mawla.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Essex County, Docket No. CP-
                000286-2015.

                Ronald P. Colicchio argued the cause for appellant
                Frederick T. Jelin (Saul Ewing Arnstein & Lehr, LLP,
                attorneys; Ronald P. Colicchio, on the briefs).

                Jordan D. Weinreich argued the cause for respondents
                Deborah Newmyer, Abraham Jelin, and Sarah Jane
                Jelin (Sherman Wells Sylvester & Stamelman, LLP,
                attorneys; Julian W. Wells and Jordan D. Weinreich, of
                counsel; Matthew F. Chakmakian, on the briefs).

                Begley Law Group, PC, attorneys for respondents
                Martin Jelin, Joshua Jelin, and James Jelin, join in the
                brief of respondents Deborah Newmyer, Abraham
                Jelin, and Sarah Jane Jelin.
PER CURIAM

      Frederick T. Jelin is the brother of Anne L. Jelin. He appeals from a

January 8, 2018, order granting Anne's siblings, nieces, and nephews

(collectively, respondents) summary judgment dismissal of his complaint

challenging Anne's1 will and denying his motion for summary judgment. He

also appeals from a May 18, 2018, order denying his request for counsel fees.

We affirm.

      We summarize the facts from the record. They are set forth in greater

detail in the motion judge's decisions. In 2009, Anne's sister, Sarah Jane,

contacted an attorney to prepare Anne's will. Sarah Jane knew this attorney

because their children attended school together. Anne met with the attorney

without any of the respondents present and gave specific instructions regarding

charitable and other specific bequests she wished to make to a personal aide and

family members, excluding Frederick. During the next four years, Anne's estate

attorney prepared several draft wills, all of which continued to exclude

Frederick.




1
  We utilize the parties' first names for ease of reference and because some of
them share a common surname. We intend no disrespect.
                                                                        A-4878-17T2
                                       2
      Ultimately, Anne executed two of the wills drafted by her attorney. The

first, executed on October 14, 2010, contained charitable bequests she

previously identified and specific bequests to each of her nieces and nephews,

except Frederick's fourth child, a son born of another relationship following a

divorce from his first wife. The will stated Frederick's three children from his

first wife would be granted a one-fourth share of the estate's residuary, with the

other three-fourths benefitting Anne's siblings, Deborah and Abraham,

excluding Frederick. Additionally, the will paid Frederick's children from the

first marriage the value of their shares in Karnak, a family corporation, from

other assets, rather than give them stock as the other beneficiaries received.

      Anne executed another will on February 18, 2013, which included similar

charitable bequests and specific bequests for Anne's nieces and nephews. Unlike

the 2010 will, this one provided Frederick's children from his first marriage

would receive specific bequests of cash in addition to their collective one-fourth

share of the residuary. Again, Frederick would not inherit under the 2013 will.

      When Anne died, Frederick filed a complaint challenging the will. He

alleged Anne, who had Turner syndrome, possessed a low IQ, and suffered a

series of strokes, lacked testamentary capacity to execute the will, and was

unduly influenced by her siblings. Following the completion of fact and expert


                                                                          A-4878-17T2
                                        3
discovery, respondents filed a motion for summary judgment and Frederick

cross-moved for summary judgment.

      The motion judge issued a comprehensive oral decision granting

respondents' motion for summary judgment and denying Frederick's cross-

motion. The judge concluded there were no material facts in dispute regarding

whether Anne lacked capacity or was unduly influenced to disinherit Frederick.

      On the issue of testamentary capacity, the judge credited the unrebutted

testimony of the attorney who prepared Anne's wills and will execution

witnesses who stated Anne had capacity to understand what she was signing.

The judge found the evidence established Anne understood the nature of her

property and its particular disposition, recollected the persons who were the

natural objects of her bounty, and comprehended the interrelatedness of those

factors. Specifically, he stated:

            [Anne] was aware that she had money. She was aware
            that she had assets, as evidenced by the fact that she
            took vacations, that she bought gifts. And — the
            testimony was she pretty much bought whatever she
            wanted. And she certainly knew enough about her
            assets and the natural objects of her bounty. She left a
            bequest to JESPY House. . . . . JESPY House is an
            organization . . . in South Orange, and . . . they provide
            support for people who are developmentally disabled.
            And she also was actively involved with the American
            Cancer Society. And again, . . . the relationship . . .
            goes back to her brother Billy, who died from cancer.

                                                                         A-4878-17T2
                                        4
                   So it seems to me that she also understood who
           . . . were the natural objects of her bounty. . . . Deborah
           . . . took care of her and made decisions for her. Sarah
           took care of her finances. Abraham got involved
           medically from time to time. And the testimony is that
           – again, going back to understanding her assets – is that
           according to [Erin] Ruiz, her caretaker, that she used a
           credit card and she was a bargain hunter and she
           understood – she was a shopper, so to speak, and she
           . . . enjoyed that.

                  . . . [A]s far as the natural objects of her bounty
           is concerned, . . . in the 2013 will, she's focused on
           Deborah and on Abraham and on Sarah. And again, . . .
           they are the natural objects of her bounty based upon
           their relationship and based upon the fact that they are
           her support group. And it's clear that she had a
           fondness for Fred[erick]'s children, and . . . for his first
           wife. She expresses that. And she wants to take care
           of them because she cares for them. And she disinherits
           her brother, it's true, and disinherits her nephew, but not
           the rest of her family. So, that, to me, shows that she
           understood who was the natural objects of her bounty.
           It also confirms that the testimony that's been offered,
           that she wasn't happy with her brother. That doesn't
           mean she didn't love him, she just wasn't happy with
           him and she didn't want him to participate . . . in her
           estate.

The judge found Frederick's claims, namely, that Anne was incapable of

understanding complex documents and suffered from depression, insufficient to

overcome the presumption of capacity.




                                                                          A-4878-17T2
                                        5
      The judge rejected the testimony of Frederick's expert because the expert

challenged the process of the will execution, but did not address Anne's capacity.

The judge concluded the expert

            speculated throughout his deposition as to the
            procedure that should have been used when dealing
            with a low IQ person. . . . But there's no requirement
            in any statute, there's no requirement in any case law,
            and he doesn't point to any requirement even in his field
            . . . dealing with incapacity which would require . . .
            this process.

      The judge credited the unrebutted expert testimony offered by

respondents' certified forensic psychologist and clinical neuropsychologist

demonstrating there was no evidence Anne lacked capacity at the time she

executed the 2013 will. To the contrary, the expert noted Anne completed

coursework at New York University and obtained a certification as a nursery

assistant, lived independently for parts of her life, divided her assets between

her family and organizations she supported, which the judge found "show[ed]

that she understood on some level the nuances involved in her estate." The other

evidence noted by respondents' expert, which the judge found probative, was

Anne understood the value of money, cut coupons, paid for items using an ATM

card, used her wallet, and bought gifts for friends. According to the expert, there




                                                                           A-4878-17T2
                                        6
was no medical proof she lacked capacity, or that her expressive or receptive

language abilities were deficient.

      The judge concluded:

            Anne understood that she had money. That was attested
            to by Sarah Jane and by . . . Ruiz, and she took vacations
            when she wanted, she bought gifts and . . . other items
            as she pleased. She used an ATM and clearly knew the
            value of the money she used. She liked to use coupons
            and get bargains. It seems also clear to [the court] that
            Anne recollected the property of which she was about
            to dispose and the particular distribution she was
            effectuating. There's testimony that she had a strong
            connection to JESPY, and she left . . . a gift in her will.
            She was upset with her brother's . . . passing and his
            death from cancer, and she left a gift to the Cancer
            Society.

                   She left money to . . . [Frederick]'s children, as
            she wanted to make sure that they were cared for. And
            the testimony, again, pretty much unrefuted, is that
            even if I [accept] [Frederick]'s argument that he loved
            her and she loved him, I don't think that's the
            standard. . . . [T]he unrefuted testimony is that Anne
            was upset that Fred[erick] and his first wife couldn't
            make things work out, and she was disappointed with
            her brother for divorcing his wife and having a
            relationship with another woman and having another
            child. And again, the testimony is . . . that she liked, I
            should say, Fred[erick]'s first wife, Beth, and didn't
            understand why Fred[erick] left his family.

                  So, on these facts, I cannot come to a clear
            conviction without hesitancy that Anne . . . lacked
            capacity, so summary judgment is granted in favor of


                                                                          A-4878-17T2
                                        7
              [respondents], dismissing counts . . . one and three of
              the complaint with prejudice and without cost.

      The motion judge also rejected Frederick's claim of undue influence. He

noted Frederick conceded there was no direct evidence of undue influence.

Instead, Frederick argued there was a presumption of undue influence based

upon a confidential relationship between Anne and her siblings, and alleged

there were suspicious circumstances present when Anne executed the 2010 and

2013 wills.

      The judge found the evidence clearly established a confidential

relationship. Indeed, there was no dispute Sarah Jane assisted Anne with her

finances after Anne suffered a stroke, and was named her healthcare proxy in

2010; Abraham was actively involved in making medical decisions for Anne;

and Deborah and Abraham were trustees of Anne's trust. The judge also found

the record established there were suspicious circumstances present when Anne

executed the 2010 and 2013 wills because Sarah Jane first suggested Anne

prepare a will and recommended she see an attorney, who was an acquaintance.

      However, the judge determined the presumption was overcome

              because there's nothing to indicate [the estate attorney]
              ever worked for anyone else in the family. He certainly
              was contacted, suggested, recommended by Sarah Jane,
              who knew him, but there's . . . nothing to indicate that
              there's a conflict of professional loyalty. . . . [T]here's

                                                                            A-4878-17T2
                                          8
             no proof that [the attorney] was the attorney for the
             beneficiaries now, the brothers and sisters who
             benefitted from the drafting of the will.

                    Next, it also seems to me that Sarah Jane, while
             she is an attorney and she's a beneficiary, is not the
             attorney, she wasn't acting as an attorney for the
             decedent. She didn't get involved as the attorney for
             her sister and benefit from the attorney relationship.

      He concluded there was no undue influence because the 2013 will

reasonably benefitted the natural objects of Anne's bounty.       He found the

evidence, which included financial instruments dating back to 1997,

demonstrated over an extended period of time Anne "saw her close-in family as

the natural objects of her bounty[,]" except for Frederick.

      The judge found ample reasons why Anne consistently excluded

Frederick.   He noted the evidence demonstrated there was a long-standing

schism in the family, where Frederick was involved in litigation with the family

involving Billy's estate. Anne often sided with the family rather than Frederick

in these disputes. According to her caretaker, Anne referred to Frederick as the

"blacksheep of the family[.]"       Thus, substantial evidence offering logical

reasons for Frederick's exclusion as a beneficiary of her estate overcame the

presumption of undue influence suggested by Sarah Jane's referral to the

attorney who drafted Anne's will.


                                                                        A-4878-17T2
                                        9
      Following entry of summary judgment in respondents' favor, Frederick

filed a motion for counsel fees pursuant to Rule 4:42-9(a)(3). The judge made

oral findings, which reiterated in detail the findings undergirding summary

judgment in respondents' favor.       The judge concluded Frederick had no

reasonable cause to challenge the will and no right to counsel fees, and denied

the request.

      Frederick appealed from the aforementioned orders.            He sought to

supplement the appellate record with evidence he obtained as part of discovery

in an action involving his parents' estates. We denied the motion and directed

him to file a motion for reconsideration in the trial court. Frederick's motion for

reconsideration alleged he obtained new evidence of: the relationship between

Sarah Jane and the estate attorney; examples of Sarah Jane's involvement and

undue influence on the formation of the estate plan for the siblings' mother,

Sima; and testimony related to the denial of Frederick's fee application. The

motion judge concluded the information Frederick obtained did not constitute

new evidence and was discoverable beforehand. Even if new, the evidence was

immaterial and would not impact the decision.

      Frederick also argued the court erred by failing to conduct a plenary

hearing before entering summary judgment because the judge relied upon


                                                                           A-4878-17T2
                                       10
opinion testimony and there were witness credibility issues. The motion judge

denied reconsideration, first noting our remand was limited to the alleged newly

discovered evidence, not whether a plenary hearing should be held to address

credibility. Notwithstanding, the judge concluded Frederick

            has not done more than raise a "metaphysical doubt" as
            to credibility. Sarah Jane [and the estate attorneys]
            have all been deposed and provide consistent testimony
            as to the nature and extent of their relationships. While
            it is not impossible for a finder of fact to conclude that
            there may have been some nefarious behind-the-scenes
            machinations among the three to cut [Frederick] out of
            Anne's will without Anne's knowledge or consent, the
            record simply does not support such a finding. The
            connections are unsubstantiated and have been denied,
            and [Frederick] has only raised circumstantial doubts
            which fall short of the requirement that [Frederick]
            "'come forward with evidence' that creates a genuine
            issue of material fact" as to credibility.

            [(alteration in original) (citations omitted)].

      On appeal Frederick argues the following points:

            I.   THE COURT COMMITTED CLEAR ERROR
            BY DECIDING THIS CONTESTED MATTER ON
            THE PAPERS.

            II. ANNE DID NOT KNOW THE EXTENT OF
            HER   ASSETS   AND  THERE   IS   NO
            ACKNOWLEDGMENT BY ANYONE THAT SHE
            UNDERSTOOD THE DOCUMENT THAT SHE
            EXECUTED.



                                                                         A-4878-17T2
                                       11
      III. THE GRANT OF SUMMARY JUDGMENT IN
      FAVOR OF RESPONDENTS ON THE ISSUE OF
      UNDUE INFLUENCE WAS CLEAR ERROR AS
      THERE REMAINED SIGNIFICANT CREDIBILITY
      ISSUES AND MATERIAL ISSUES OF FACT IN
      DISPUTE.

      IV. THE FAILURE TO GRANT [FREDERICK]
      ACCESS TO RESPONDENTS' EMAILS CAUSED
      UNDUE PREJUDICE.

      V.  APPELLANT HAD REASONABLE CAUSE TO
      INQUIRE INTO THE PROPRIETY OF THE
      COMPLICATED WILLS EXECUTED BY ANNE
      AND THE DENIAL OF THE FEE APPLICATION
      WAS AN ABUSE OF DISCRETION.

Frederick's supplemental brief argues:

      I.  THE COURT SHOULD HAVE CONDUCTED
      AN   EVIDENTIARY   HEARING   BEFORE
      GRANTING SUMMARY JUDGMENT.

            A.    There Is Insufficient Evidence To Establish
            That Anne Assented To The Terms Of The 2013
            Will Or The 2010 Will.

            B.     Bias And Motivation Are Important
            Factors To Consider When Analyzing Sarah
            Jane's Testimony Concerning Her Actual
            Involvement In The Process Of Creating The
            Wills.

            C.   A Trial Is Necessary          To   Properly
            Determine Witness Credibility.

            D.   Opinion Testimony Is Not Dispositive Of
            Any Factual Disputes.

                                                                A-4878-17T2
                               12
II. THE COURT DECIDED THE MATTER ON
THE   PAPERS    DESPITE   THE   OBVIOUS
CREDIBILITY ISSUES, MOTIVATION AND BIAS
WHICH SURROUNDED THE PROCUREMENT OF
THE WILLS BY SARAH JANE.

    A.    Sarah Jane[]'s Relationship With The
    Scrivener Is More Significant Than She Revealed
    At Her Deposition.

    B.   This Is Not The First Time That Sarah Jane
    Was Accused Of Coercing A Family Member
    Concerning Karnak.

    C.     Despite Being A Beneficiary Of Sima
    Jelin's Estate, Anne Was Provided With No
    Information      Of    Distributions  From
    [Respondents] As Fiduciaries.

III. RESPONDENTS    AND   THE    COURT
PROCEEDED ON A FAULTY PREMISE AS TO THE
BURDEN OF PROOF NECESSARY TO OVERCOME
THE PRESUMPTION OF UNDUE INFLUENCE.

IV. ANNE DID NOT KNOW THE EXTENT OF
HER   ASSETS   AND   THERE  IS   NO
ACKNOWLEDGMENT THAT SHE UNDERSTOOD
THE DOCUMENT SHE EXECUTED.

V.   [FREDERICK] SHOULD HAVE BEEN
GRANTED REASONABLE FEES BASED ON
ANNE'S CAPACITY ISSUES, RESPONDENTS'
MOTIVATION TO EXCLUDE [FREDERICK] FROM
KARNAK AND SARAH JANE'S INVOLVEMENT IN
THE PROCESS.




                                                      A-4878-17T2
                      13
                                        I.

      We review an order granting summary judgment de novo. Graziano v.

Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). On appeal of a grant or denial

of summary judgment, we apply the same standard as the trial court. R. 4:46-2.

We look at all of the evidence submitted in the "light most favorable to the non-

moving party," and determine if the moving party is entitled to summary

judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995). The court may not weigh the evidence and determine the truth

of the matter. Ibid. The court's role is to determine whether there is a genuine

issue for trial. Ibid. A party moving for summary judgment must show there is

no genuine issue as to any material fact challenged and that he or she is entitled

to a judgment or order as a matter of law. R. 4:46-2(c). However, there are

cases where the evidence "is so one-sided that one party must prevail as a matter

of law." Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986)).

      When both parties move for summary judgment, the court may assume the

matter is ripe for adjudication. Liberty Surplus Ins. Corp. v. Nowell Amoroso,

P.A., 189 N.J. 436, 450 (2007).       In deciding cross-motions for summary

judgment, however, a judge may not accept one of two conflicting versions of


                                                                          A-4878-17T2
                                       14
material facts and render a decision on that basis. O'Keeffe v. Snyder, 83 N.J.

478, 487 (1980). Summary judgment is granted on cross-motions because "one

of the moving parties is entitled to judgment as a matter of law." Ibid. (citation

omitted).

      When both sides seek summary judgment, and the trial court grants

judgment to one party, on appeal we view the evidence in the light most

favorable to the party who lost. Liberty Surplus Ins. Corp., 189 N.J. at 445. Our

inquiry remains essentially the same: whether that evidence presents a genuine

issue of material fact that must be submitted to a fact-finder or whether it is so

one-sided one party is entitled to judgment as a matter of law. Id. at 445-46.

      "Motions for reconsideration are granted only under very narrow

circumstances[.]" Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462

(App. Div. 2002). We review a trial court's denial of reconsideration for abuse

of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).

      We considered Frederick's arguments relating to the granting of summary

judgment on the issues of testamentary capacity and undue influence, and in

light of the record before us, we affirm for the reasons expressed by the motion

judge. We reached the same result on our de novo review of the record. The

factual arguments raised by Frederick do not create a material factual dispute as


                                                                          A-4878-17T2
                                       15
to either Anne's capacity or Sarah Jane's alleged undue influence. The new

evidence did not create a material dispute in fact thwarting summary judgment

in respondents' favor.

                                       II.

      A trial court's fee determinations are accorded substantial deference, and

are disturbed only on the rarest of occasions—because of a clear abuse of

discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001);

Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Yueh v. Yueh, 329 N.J. Super.

447, 466 (App. Div. 2000); In re Estate of Bloomer, 43 N.J. Super. 414, 416

(App. Div. 1957). An abuse of discretion in the award of counsel fees may be

demonstrated "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) (citing Flagg v. Essex Cty. Prosecutor, 171

N.J. 561, 571 (2002)).

      Whether an allowance is permissible under the court rules, however, is a

question of law subject to de novo review.       See Balsamides v. Protameen

Chems., 160 N.J. 352, 372 (1999) ("[M]atters of law are subject to de novo

review."); Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995) ("A


                                                                         A-4878-17T2
                                      16
trial court's interpretation of the law and the legal consequences that flow from

established facts are not entitled to any special deference." (citations omitted)).

      We are unpersuaded the motion judge abused his discretion or erred as a

matter of law. The judge made detailed findings explaining why Frederick had

no reasonable cause to challenge the will and was not entitled to an award of

fees. We affirm for the reasons expressed by the motion judge.

      Affirmed.




                                                                           A-4878-17T2
                                       17
