                             NOT FOR PUBLICATION WITHOUT THE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-3145-17T4




IN THE MATTER OF THE
ESTATE OF JOSEPHINE
MACDONALD, deceased.
__________________________

                 Submitted February 6, 2019 – Decided March 6, 2019

                 Before Judges Reisner and Mawla.

                 On appeal from Superior Court of New Jersey,
                 Chancery Division, Passaic County, Docket No. P-
                 215616.

                 Douglas J. Kinz, attorney for appellants Warren
                 MacDonald, III, Heather MacDonald, Ashley Minder
                 and Kathleen MacDonald.

                 Trapanese & Trapanese, attorneys for respondents Lori
                 Scheidemann, Executrix, and Estate of Josephine
                 MacDonald (Jeffrey J. Trapanese, on the brief).

PER CURIAM

       Plaintiffs Warren MacDonald III, Heather MacDonald, Ashley Minder,

and Kathleen MacDonald appeal from a February 5, 2018 order, dismissing their
amended verified complaint seeking to set aside the September 16, 2016 will of

decedent Josephine MacDonald and admit to probate a prior will from 2010 and

a 2011 codicil. On this appeal, our review is de novo. See Banner v. Hoffmann-

La Roche Inc., 383 N.J. Super. 364, 373-74 (App. Div. 2006). We conclude that

the amended verified complaint stated a cause of action, and the trial court erred

in dismissing the complaint without permitting plaintiffs to take discovery.

Therefore, we reverse the order on appeal and remand this matter to the trial

court for further proceedings.

      Because we are reversing on procedural grounds, the essential facts can

be stated briefly.     Plaintiffs, who were decedent's daughter-in-law and

grandchildren, asserted that in a prior will, decedent had left them substantial

assets, but she disinherited them in her 2016 will. Plaintiffs alleged that around

the time decedent executed the 2016 will, she was mentally confused and

sometimes delusional, and lacked testamentary capacity. They also alleged that

decedent's daughter exercised undue influence so as to cause her mother to

disinherit plaintiffs and leave her entire estate to the daughter.        Viewed

indulgently, with an eye toward discerning a cause of action, Printing Mart-

Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989), the facts pled in the

amended complaint were sufficient to state a cause of action. See In re Estate


                                                                          A-3145-17T4
                                        2
of Folcher, 224 N.J. 496, 512 (2016) (undue influence); In re Will of Liebl, 260

N.J. Super. 519, 524-25 (App. Div. 1992) (lack of testamentary capacity).

      On November 9, 2017, the trial court issued a detailed case management

order, setting dates for discovery, a pretrial conference, and a trial. The parties,

in fact, propounded interrogatories, document demands, and deposition notices

on each other. However, without providing any discovery, defendants (the

Estate and the daughter) filed what they characterized as a motion to dismiss the

complaint pursuant to Rule 4:6-2(e).1           The motion was supported by

certifications essentially setting forth defendants' side of the case, including

certifications from the daughter and the attorney who prepared the will. Over

vigorous objection from plaintiffs' counsel - pointing out that he had not

obtained any discovery yet, including decedent's medical records and

information concerning certain assets left to his clients in the prior will - the

trial court converted the motion to dismiss to a summary judgment motion and

dismissed the complaint. See R. 4:6-2.




1
    Before plaintiffs filed the amended complaint, defendants' counsel had
voluntarily provided plaintiffs' counsel with copies of decedent's prior will from
2010 and the 2011 codicil. However, defendants did not respond to plaintiffs'
interrogatories, document demands or deposition notices served after the case
management conference.
                                                                            A-3145-17T4
                                         3
      "Generally, we seek to afford 'every litigant who has a bona fide cause of

action or defense the opportunity for full exposure of his case.' When 'critical

facts are peculiarly within the moving party's knowledge,' it is especially

inappropriate to grant summary judgment when discovery is incomplete."

Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) (citations

omitted).

      Reviewing the record with that standard in mind, we conclude that the

trial court acted prematurely in dismissing the complaint based on defendants'

one-sided presentation of evidence, without allowing plaintiffs to take any

discovery. We appreciate that the court may have believed plaintiffs' case was

weak and was concerned that the estate would be consumed with attorneys' fees.

Nothing precluded the court from carefully managing discovery, or even

permitting defendants to move for partial summary judgment after relevant

discovery was complete on a particular issue. However, it was premature and

improper to dismiss the complaint on summary judgment without permitting

plaintiffs to obtain any discovery.

      Accordingly, we reverse the order on appeal, reinstate the amended

verified complaint, and remand this matter to the trial court.

      Reversed and remanded. We do not retain jurisdiction.


                                                                        A-3145-17T4
                                        4
