                                NOT FOR PUBLICATION WITHOUT THE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-5550-18T1

STEVEN E. HAAS,
Individually and as Executor
Under the Last Will and
Testament of Anita R. Haas,
Deceased,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

JEFFREY L. HAAS,

     Defendant-Appellant/
     Cross-Respondent.
______________________________

                   Argued telephonically May 27, 2020 –
                   Decided June 24, 2020

                   Before Judges Yannotti and Firko.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Probate Part, Middlesex County,
                   Docket No. 264140.

                   Francis Joseph Ballak, Jr. argued the cause for
                   appellant/cross- respondent (Goldenberg, Mackler,
            Sayegh, et al., (Francis Joseph Ballak, Jr., on the
            briefs).

            Ronald J. Busch argued the cause for respondent/cross-
            appellant (Busch and Busch, LLP, attorneys; Ronald J.
            Busch, on the briefs).

PER CURIAM

      Defendant Jeffrey L. Haas 1 appeals from an order entered by the Chancery

Division, Probate Part, on July 8, 2019, which overruled his caveat to the last

will and testament of Anita R. Haas and admitted the will to probate. The order

also awarded fees to the attorney for Steven E. Haas to be paid by the estate, but

denied fees requested by Jeffrey.

      Plaintiff Steven cross-appeals and seeks to have the award of counsel fees

paid by Jeffrey individually and not the estate. We have reviewed the arguments

in light of the record and applicable law and affirm.

                                        I.

      We discern the following facts from the record. Anita died testate on

February 5, 2019. She had two children, Steven and Jeffrey. Her last will and

testament, executed on April 19, 2018, directed the executor to pay her debt s

and funeral expenses, and left the residuary estate to her husband, Lawrence


1
   Inasmuch as all parties bear the same surname, we use their first names for
clarity, meaning no familiarity or disrespect.
                                                                          A-5550-18T1
                                        2
Haas. The will states that in the event Lawrence predeceases her, then her

residuary estate would be left to Steven and Jeffrey in equal shares.

      Lawrence died in August 2018. After Anita's subsequent death, Steven,

who was named executor, submitted her will to probate. After Jeffrey filed a

caveat to the will, Steven filed a complaint and order to show cause (OTSC) in

a summary action to strike the caveat and admit the will to probate. Jeffrey filed

a counterclaim asserting the will was procured by undue influence.               He

contended that Steven lived with their parents for eighteen years; was financially

dependent on them; and incapable of serving as executor.

      According to Jeffrey, he was named as the executor of his mother's estate

in her prior wills and both of his parents had significant health issues. He alleged

Anita changed her will and named Steven as executor in April 2018 because

Steven exerted undue influence over his parents. Jeffrey requested discovery,

including production of his mother's prior wills, to support his undue influence

claim, and a plenary hearing. He did not challenge the disposition of the estate.

      On June 14, 2019, in an oral decision, the probate judge dismissed the

caveat; admitted Anita's April 19, 2018 will to probate; and named Steven as

executor of the estate. In ruling on the OTSC, the judge noted there was no

evidence that Steven could not properly administer the estate. There also was


                                                                            A-5550-18T1
                                         3
no evidence that Anita named Jeffrey as her executor under a prior will, or any

proof to support the claim that Steven exerted undue influence in being named

as executor. The judge awarded counsel fees in favor of Steven and against the

estate.

      On June 21, 2019, Steven's counsel submitted a certification of services

in application for counsel fees. On July 8, 2019, the judge entered an order

memorializing his June 14, 2019 decision and awarding $7895 for legal services

to Steven's counsel, Ronald J. Busch, Esq. No attorney's fees were awarded to

Backes and Backes, LLC, former counsel for Jeffrey. The judge ordered Mr.

Busch's fee to be paid by the estate.

      On appeal, Jeffrey argues: (1) the judge erred in granting the relief sought

in the OTSC without permitting discovery or conducting a plenary hearing; and

(2) the judge abused his discretion in awarding fees to Steven's attorney and

denying fees to his former counsel.

      In his cross-appeal, Steven argues that the award of counsel fees to Mr.

Busch was proper but should have been assessed against Jeffrey individually

and not against the estate.




                                                                          A-5550-18T1
                                        4
                                       II.

      Steven commenced this action in accordance with Rule 4:83-1 which

provides, in part: "[u]nless otherwise specified, all actions in the Superior

Court, Chancery Division, Probate Part, shall be brought in a summary manne r

by the filing of a complaint and issuance of an [OTSC] pursuant to R. 4:67."

See also N.J.S.A. 3B:2-4. Under Rule 4:67-5, the trial court must try the case

on the return date of the OTSC or on a "short day" as it fixes. The trial court is

compelled to hold a hearing if "there may be a genuine issue as to a material

fact," at which the court "shall hear the evidence as to those matters which may

be genuinely in issue, and render final judgment." Ibid. But, if "the affidavits

show palpably that there is no genuine issue as to any material fact, the court

may try the action on the pleadings and affidavits, and render final judgment

thereon." Ibid.

      Here, the judge's review of the pleadings led to his conclusion there was

"no reason" to change the executor. Under the supervision of the Middlesex

County Surrogate, the judge concluded that Steven was able to administer the

estate, which was not "complex," for the benefit of the heirs. The judge went

on to state there was nothing "wrong" with the parents changing the




                                                                          A-5550-18T1
                                        5
administration of the will to the son "that stays at home and takes care of them

. . . and provides comfort for them . . . ."

      Our review of summary actions conducted pursuant to Rule 4:67 applies

the usual standard for civil cases. See e.g., O'Connell v. N.J. Mfrs. Ins. Co., 306

N.J. Super. 166, 172-73 (App. Div. 1997) (applying a substantial-credible-

evidence standard in reviewing a decision from a summary action), appeal

dismissed, 157 N.J. 537 (1998). "Findings by the trial judge are considered

binding on appeal when supported by adequate, substantial and credible

evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

(1974). When a court makes findings of fact based on documentary evidence

alone, however, no special deference is warranted. See Clowes v. Terminix Int'l

Inc., 109 N.J. 575, 587 (1988); Jock v. Zoning Bd. of Adjustment, 371 N.J.

Super. 547, 554 (App. Div. 2004), rev'd on other grounds, 184 N.J. 562 (2005).

And, "[o]ur review of a trial judge's legal conclusions is de novo." Walid v.

Yolanda for Irene Couture, Inc., 425 N.J. Super. 171, 179-80 (App. Div. 2012).

      Jeffrey contends he presented sufficient evidence that Anita's will was the

product of undue influence to warrant discovery and a plenary hearing. Our

courts have long recognized that undue influence is "mental, moral or physical"

exertion sufficient to preclude the testator's exercise of free will, by preventing


                                                                           A-5550-18T1
                                          6
them "from following the dictates of [their] own mind," and succumbing to "the

domination and influence of another," in dividing their estate. In re Estate of

Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943); see also Haynes v. First Nat'l

State Bank of N.J., 87 N.J. 163, 176 (1981).

      The shifting burdens of proving undue influence were explained by our

Supreme Court:

            Ordinarily, the burden of proving undue influence falls
            on the will contestant. Nevertheless, we have long held
            that if the will benefits one who stood in a confidential
            relationship to the testator and if there are additional
            "suspicious" circumstances, the burden shifts to the
            party who stood in that relationship to the testator. In
            re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). In
            general, there is a confidential relationship if the
            testator, "by reason of . . . weakness or dependence,"
            reposes trust in the particular beneficiary, or if the
            parties occupied a "relation[ship] in which reliance
            [was] naturally inspired or in fact exist[ed]." In re
            [Estate of] Hooper, 9 N.J. 280, 282 (1952). Suspicious
            circumstances, for purposes of this burden shifting,
            need only be slight.

            When there is a confidential relationship coupled with
            suspicious circumstances, undue influence is presumed
            and the burden of proof shifts to the will proponent to
            overcome the presumption.

            [In re Estate of Stockdale, 196 N.J. 275, 303 (2008)
            (alterations in original) (internal citations omitted).]




                                                                        A-5550-18T1
                                       7
      Based upon that standard, Jeffrey's submissions to the probate judge were

insufficient to establish his claim of Steven's undue influence over Anita at the

time the will was executed. See In re Livingston's Will, 5 N.J. 65, 76 (1950)

("Undue influence, to vitiate a will, must be operative at the time the will is

executed."). In his verified answer and counterclaim, Jeffrey asserted that for

eighteen years, Steven "labored under condition of mental ill-being[;]" was

"unable to work or live independently;" and was "forced" to live with their

parents for the past eighteen years. Jeffrey also claimed his parents advised him

"that he was the executor nominated in their [w]ills." He also averred that

Steven "is unable to manage even his own affairs" but admitted he is "articulate."

      In his verified complaint, Steven attested at the time of the preparation

and execution of her will, Anita "was clear in her intention" to appoint him as

her executor. Steven also stated that he qualified as executor for his father's

estate "and has properly served in that position." Steven verified that both

parents, "properly and knowingly," and "without any undue influence,"

appointed him to serve as executor.

      Although the judge did not provide an extended analysis of this issue, we

are satisfied he properly found Jeffrey failed to establish undue influence.

Jeffrey's unsupported allegations are simply based on his belief. Likewise,


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                                        8
Jeffrey's allegations do not identify specific time periods and no medical

evidence was produced in respect of his claims of undue influence as to Anita

or Steven's alleged inability to serve as executor. Moreover, Jeffrey was named

as the alternate executor and the residuary estate was left to both sons in equal

shares.

       Jeffrey's proffer also does not establish a confidential relationship

between Steven and Anita. It is not enough to demonstrate that a beneficiary

who stood to benefit from the will had a close relationship with the decedent.

In re Will of Liebl, 260 N.J. Super. 519, 528-29 (App. Div. 1992). Rather, there

must be some showing that the decedent was particularly vulnerable to undue

influence. Ibid. No evidence was presented by Jeffrey that Anita was mentally

incompetent; therefore, no presumption of undue influence arises. See id. at

529.      Moreover, the proffer does not establish suspicious circumstances

surrounding the preparation and execution of the April 19, 2018 will.

       "Summary actions are, by definition, short, concise, and immediate, and

further, are 'designed to accomplish the salutary purpose of swiftly and

effectively disposing of matters which lend themselves to summary treatment.'"

MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534,

551 (App. Div. 2005) (quoting Depos v. Depos, 307 N.J. Super. 396, 399 (Ch.


                                                                         A-5550-18T1
                                       9
Div. 1997)). Inasmuch as a party in a summary action proceeding is not entitled

to favorable inferences such as those afforded to the respondent in a summary

judgment motion, O'Connell, 306 N.J. Super. at 172, the judge correctly found

Jeffrey raised no genuine issue of material fact to warrant further proceedings.

      Jeffrey produced no proof that Anita lacked requisite testamentary

capacity to execute the 2018 will. In considering the issue, courts must consider

if the decedent was able to "comprehend the property [she was] about to dispose

of; the natural objects of [her] bounty; the meaning of the business in which [she

was] engaged; the relation of each of these factors to the others, and the

distribution that is made by the will." Livingston's Will, 5 N.J. at 73. "[A]s a

general principle, the law requires only a very low degree of mental capacity for

one executing a will." Liebl, 260 N.J. Super. at 524 (quoting In re Will of

Rasnick, 77 N.J. Super. 380 394 (Cty. Ct. 1962)). "[T]he burden of establishing

a lack of testamentary capacity is upon the one who challenges its existence

. . . . [and] must be [proven] by clear and convincing evidence." In re Estate of

Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952).

      Jeffrey's claim that "it is inconceivable" that Anita "would voluntarily

name [Steven] [as] executor in lieu of counterclaimant" does not establish her

testamentary capacity in April 2018. Again, Jeffrey's proffer does not refute


                                                                          A-5550-18T1
                                       10
Steven's assertion Anita appointed him as her executor without any undue

influence, or that he is capable of administering the estate.

      We conclude Jeffrey's proofs were insufficient to establish that there was

a genuine issue as to any material fact. R. 4:67-5. Therefore, the probate judge

correctly struck the caveat and admitted the will to probate.

                                       III.

      We next address Jeffrey's contention that the judge abused his discretion

in awarding counsel fees to Steven's attorneys to be paid from the estate and

denying fees to his attorney.       According to Jeffrey, his pleadings were

persuasive and justified discovery and a plenary hearing. He claims the judge

did not give sufficient reasons for the award.

      When authorized, "fee determinations by trial courts will be disturbed

only on the rarest of occasions, and then only because of a clear abuse of

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

(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The award of counsel

fees is done at the discretion of the trial court, and is awarded substantial

deference. In re Probate of Alleged Will of Hughes, 244 N.J. Super. 322, 328

(App. Div. 1990).




                                                                        A-5550-18T1
                                       11
      "New Jersey follows the American Rule, which requires that parties bear

their own counsel fees except in the few situations specifically permitted by

statute or by our Supreme Court." In re Farnkopf, 363 N.J. Super. 382, 395

(App. Div. 2003). Probate actions are one such instance where counsel fees may

be awarded. Ibid. Indeed, Rule 4:42-9(a)(3) permits the court to award counsel

fees in probate actions to be paid out of the estate if the contestant had

reasonable cause for contesting the validity of the will.

      To satisfy the "reasonable cause" requirement, petitioners seeking "an

award of counsel fees must provide the court with 'a factual background

reasonably justifying the inquiry as to the testamentary sufficiency of the

instrument by the legal process.'" In re Probate of Alleged Will & Codicil of

Macool, 416 N.J. Super. 298, 313 (App. Div. 2010) (quoting In re Caruso, 18

N.J. 26, 35 (1955)). In order to award counsel fees be paid out of the estate,

            there must . . . be a showing that the validity of the will
            was not only questionable but there was reasonable
            cause for actually contesting it, related to the practical
            effect of a successful contest, the size of the estate and
            the probable expenses of litigation, and the reasonably
            anticipated result.

            [Caruso, 18 N.J. at 33 (internal quotation marks and
            emphasis omitted).]




                                                                          A-5550-18T1
                                       12
      Additionally, the trial judge must "exercise . . . sound discretion to prevent

misuse of the judicial process and the mulcting of the estate" in awarding

counsel fees in probate. Id. at 36. Bearing that in mind, "[e]xcept in a weak or

meretricious case, courts will normally allow counsel fees to both proponent and

contestant in a will dispute." Macool, 416 N.J. Super. at 313 (alteration in

original) (quoting In re Reisdorf, 80 N.J. 319, 326 (1979)).

      Here, the judge found that Steven demonstrated reasonable cause

warranting the award of counsel fees. The judge determined Jeffrey's challenge

to Anita's will was completely dispelled by the record.

      We perceive no abuse of discretion in the judge's award of counsel fees.

From our independent review of the record, we are convinced that the judge's

determination was reasonable. The judge's finding that, at the time of the filing

of the caveat and complaint, Jeffrey had no reasonable basis to challenge the

will is fully supported by the record and entitled to our deference. Therefore,

the judge did not abuse his discretion by denying Jeffrey's application for the

award of attorney's fees.

                                        IV.

      We next address Steven's cross-claim.         Steven argues that the fees

awarded should be paid by Jeffrey directly and not the estate. Steven further


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                                       13
contends that the estate should not be liable for fees because in essence, each of

the beneficiaries would be paying one-half of those fees.

      Rule 4:42-9(a)(3) provides:

            [i]n a probate action, if probate is refused, the court may
            make an allowance to be paid out of the estate of the
            decedent. If probate is granted, and it shall appear that
            the contestant had reasonable cause for contesting the
            validity of the will or codicil, the court may make an
            allowance to the proponent and the contestant, to be
            paid out of the estate.

      In awarding fees in a probate action, the trial judge must exercise "sound

discretion to prevent misuse of the judicial process." Caruso, 18 N.J. at 33. The

judge may award fees to the attorney for the executor out of estate funds. In re

Estate of Seabrook, 127 N.J. Super. 135, 142 (App. Div. 1974); see also In re

Estate of Kelley, 126 N.J. Super. 376, 378 (App. Div. 1974).

      There is no basis for modification of the order awarding counsel fees to

be paid by the estate on these grounds. The judge's determination does not

constitute an abuse of discretion or error. We are satisfied the judge's ruling on

counsel fees is adequately supported by the credible evidence contained in the

record.

      Affirmed.




                                                                          A-5550-18T1
                                       14
