                            NOT FOR PUBLICATION WITHOUT THE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
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-4994-16T1


IN THE MATTER OF THE ESTATE
OF ELEANOR WELSH, Deceased.
_________________________________

                Argued February 6, 2019 – Decided February 27, 2019

                Before Judges Ostrer and Mayer.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Burlington County, Docket No.
                2011-1105.

                Mark J. Molz argued the cause for appellants Sherese
                Welsh, Linda Welsh, and Melanie Welsh (Law Offices
                of Mark J. Molz, attorneys; Mark J. Molz, on the brief).

                Douglas A. Fendrick argued the cause for respondents
                Eileen A. Reilly and Maureen A. Kennard (Fendrick &
                Morgan, LLC, attorneys; Douglas A. Fendrick, on the
                brief).

PER CURIAM
       Appellants Sherese Welsh, Linda Welsh, and Melanie Webb appeal from

a June 1, 2017 order approving a final accounting for the Estate of Eleanor

Welsh (Estate).1 We affirm.

       Eleanor died testate on April 30, 2011. 2 Eleanor had three children:

Joseph, Jr., Eileen, and Maureen. Joseph Jr., the father of Sherese, Linda, and

Melanie, predeceased Eleanor.

       Eleanor's will was admitted to probate on May 16, 2011. According to

the will, "the monies contained in [Eleanor's] Vanguard account" were

bequeathed one-third each to respondents and one-ninth each to appellants. The

will also directed all debts, funeral expenses, and administrative expenses be

paid from the "Vanguard account."3 In addition, the will stated any beneficiary

who directly or indirectly contested the will would forfeit his or her bequest.




1
  Because each party filed an action in the probate court, we refer to the parties
by their designation on appeal. Appellants are Eleanor's granddaughters.
Respondents Eileen Reilly and Maureen Kennard are Eleanor's daughters and
co-executors of the Estate.
2
   Since some parties share the same last name, we refer to the parties by their
first name. We intend no disrespect.
3
    There was no account number specified in the will.
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                                        2
      On the date of her death, Eleanor held two Vanguard investment accounts.

In June 2011, respondents transferred the balance of the Vanguard investment

accounts into an Estate bank account.

      In August 2015, respondents sent letters to appellants, requesting

execution of release and refunding bonds to distribute the Vanguard account

funds in accordance with Eleanor's will. In October 2015, appellants requested

additional information regarding the Vanguard funds.       In December 2015,

respondents replied, explaining the schedule of distribution sent to appellants

provided an accounting of the Vanguard funds, and requested that appellants

complete and return the release forms. Appellants then requested additional

documentation and a further explanation of the distribution of the Vanguard

funds.

      Dissatisfied with the information provided by respondents, appellants

filed a verified complaint and order to show cause (OTSC). Appellants sought

a formal accounting of the Estate or, in the alternative, removal of respondents

as co-executors. On February 25, 2016, the probate judge granted appellants'

OTSC and scheduled a hearing date.          Respondents filed an answer and

counterclaim. In the counterclaim, respondents sought to enforce the no-contest

clause in the will.


                                                                        A-4994-16T1
                                        3
      After hearing argument on the OTSC, the judge denied the relief requested

by appellants in a May 6, 2016 order. In a written statement of reasons, the

judge concluded respondents provided ample information regarding the

Vanguard funds and the Estate's expenses, there was no evidence of misuse of

any funds, and the documents submitted to the court evidenced the Estate's

accounting was accurate and comported with the terms of Eleanor's will. The

judge declined to address respondents' counterclaim.

      Two weeks after the judge issued her order, appellants requested further

explanations and additional documents relating to the Estate's expenses and the

Vanguard funds. The back and forth between the parties regarding the matter

continued for several months.

      On March 9, 2017, respondents filed a verified complaint and OTSC

requesting approval of a final accounting for the Estate and seeking to proceed

in a summary manner. Respondents' verified complaint attached documentation

confirming the Estate's expenses, the Estate's payment of expenses, the Estate's

tax returns, the Vanguard account statements, and the correspondence

forwarding these documents to appellants.

      The same probate judge who handled appellants' probate action in 2016

signed respondents' OTSC and scheduled a hearing for June 1, 2017. In their


                                                                        A-4994-16T1
                                       4
responsive pleading, appellants accused respondents of withholding account

information and co-mingling Estate assets. However, appellants did not object

to proceeding in a summary manner or request a plenary hearing.

      On June 1, 2017, the parties, through their counsel, appeared before

probate court. During the hearing, appellants sought to challenge Eleanor's will

on the basis of undue influence despite never raising the argument in their 2016

probate action.

      On the date of the hearing, the judge issued an order and written statement

of reasons, approving the Estate's final accounting and rejecting appellants'

challenge to the will based on undue influence. In reviewing the documents

filed with the court, the judge concluded respondents provided a "thorough final

accounting," and noted the Burlington County Surrogate's Office "audited the

accounting and found it to be acceptable."

      On appeal, appellants argue the probate judge erred in deciding the matter

as a summary proceeding without a plenary hearing. Appellants also contend

the judge erred in rejecting their undue influence claim.

      On appeal from a summary proceeding, a trial judge's factual findings will

be upheld as long as they are "supported by adequate, substantial, and credible

evidence" in the record. Rova Farms Resort v. Inv'rs Ins. Co., 65 N.J. 474, 484


                                                                         A-4994-16T1
                                        5
(1974). We will not disturb a trial court's decision to deny a plenary hearing

unless there is a "clear abuse of discretion." Furst v. Einstein Moomjy, Inc., 182

N.J. 1, 25 (2004) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

      Probate actions shall be brought as summary proceedings by way of a

complaint and OTSC. R. 4:83-1. The Rule governing summary proceedings

provides: "[i]f no objection is made by any party, or . . . 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."

R. 4:67-5.

      Appellants argue respondents failed to file a motion to proceed summarily

in accordance with Rule 4:67-1(b). Rule 4:67-1 provides:

             This rule is applicable (a) to all actions in which the
             court is permitted by rule or by statute to proceed in a
             summary manner, . . . ; and (b) to all other actions in
             the Superior Court other than matrimonial actions and
             actions in which unliquidated monetary damages are
             sought, provided it appears to the court, on motion
             made pursuant to R. 1:6-3 and on notice to the other
             parties to the action not in default, that it is likely that
             the matter may be completely disposed of in a summary
             manner.

Because probate court matters are permitted to proceed summarily under the

Rule 4:83-1, Rule 4:67-1(a) governs this matter and respondents were not

required to file a motion to proceed in a summary manner.

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                                          6
      Appellants' argument that a hearing was required is based on a mistaken

belief that opposition to a summary complaint automatically creates an issue of

fact, requiring a hearing.   A judge is permitted to "try the action on the

pleadings" and supporting documents, provided the judge determines there are

no genuinely disputed issues of material fact.     R. 4:67-5. Moreover, in a

summary proceeding, the party opposing judgment "is not entitled to favorable

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

motion." Courier News v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super.

373, 379 (App. Div. 2003).

      While appellants claimed respondents improperly co-mingled funds and

failed to produce all account documents, appellants submitted no evidence to

support their claims. See R. 1:6-6 (requiring facts not appearing of record must

be presented to the court by affidavit or certification made on personal

knowledge). The documentation submitted to the probate court by respondents

provided ample credible evidence upon which the judge could decide the matter

without a plenary hearing. R. 4:67-5; see also Red Bank Register v. Bd. of

Educ., 206 N.J. Super. 1, 6 (App. Div. 1985) (affirming a trial court's

determination that the matter could be decided on the papers); Shaw v. Shaw,

138 N.J. Super. 436, 440 (App. Div. 1976) ("It is only where the affidavits show


                                                                        A-4994-16T1
                                       7
that there is a genuine issue as to a material fact, and that the trial judge

determines that a plenary hearing would be helpful in deciding such factual

issues, that a plenary hearing is required.").

      We next consider appellants' claim that respondents improperly used

Estate money, and therefore the judge erred in approving the final accounting.

While the judge found some Estate funds were improperly disbursed, she also

found respondents personally paid certain Estate expenses which should have

been paid from the Vanguard accounts.            The judge concluded the money

improperly disbursed by respondents from the Vanguard accounts for non-estate

expenses was over $3000 less than the money respondents personally paid for

Estate expenses. Consequently, the judge found appellants received a windfall

rather than a shortfall in the funds to be disbursed. The Burlington County

Surrogate also audited the Estate account and determined the accounting was

acceptable. Having reviewed the record, we are satisfied the judge's decision

was supported by ample credible evidence.

      We next review appellants' claim that the judge erred in rejecting their

undue influence claim. Rule 4:85-1 requires a party seeking to challenge a

probated will must do so by way of complaint and OTSC filed within four




                                                                       A-4994-16T1
                                         8
months of the judgment of the probate court, or six months if the party resides

out of State.

      Eleanor's will was probated on May 16, 2011. It was not until six years

later that appellants raised a claim of undue influence. Appellants never filed a

complaint or OTSC seeking to set aside the will in accordance with Rule 4:85-

1. We are satisfied the judge properly rejected appellants' unsupported and

belated claim of undue influence. See In re Will of Small, 85 N.J. Super. 220,

222-26 (App. Div. 1964) (affirming trial court's denial of motion to set aside

will for undue influence, filed six years after probate).

      Affirmed.




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