                            NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2897-17T3
                                                                 A-4402-17T3

IN THE MATTER OF
THE ESTATE OF LUCY
GWENDOLYN KERSHAK,
     Deceased.
____________________________

                Argued March 7, 2019 – Decided May 2, 2019

                Before Judges Whipple and Firko.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Salem County, Docket Nos. CP-
                000010-2017 and CP-000032-2017.

                Eric A. Feldhake argued the cause for appellant James
                Papiano in A-2897-17 (Kulzer & DiPadova, PA,
                attorneys; Eric A. Feldhake, on the briefs).

                Eric A. Feldhake argued the cause for appellants Mary
                Ecret, James Papiano and Nancy Kershak in A-4402-17
                (Kulzer & DiPadova, PA, attorneys; Eric A. Feldhake,
                on the briefs).

                Michael L. Testa argued the cause for respondent
                Frances Papiano in A-2897-17 (Testa, Heck, Testa &
                White, PA, attorneys; Michael L. Testa, on the brief).
            Michael L. Testa argued the cause for respondent
            Frances Papiano in A-4402-17 (Testa, Heck, Testa &
            White, PA, attorneys; Michael L. Testa and Anthony
            M. Imbesi, on the brief).

PER CURIAM

      In these consolidated appeals involving a will contest, we review a

January 19, 2018 order that denied James Papiano's motion for reconsideration

summarily dismissing his complaint in which he attempted to set aside decedent,

Lucy Gwendolyn Kershak's 2014 will and reinstate her 2008 will. He claims

the 2014 will was the product of undue influence, surreptitiously named

decedent's niece, Frances Denise Papiano as executrix, and bequeathed the

majority of the estate to her. In addition, we consider two orders entered by

another judge on April 23, 2018 granting summary judgment dismissing the

second complaint filed by James1 and Mary Ecret, and denying Nancy Kershak's

motion to intervene. For the reasons that follow, we reverse these orders and

remand for discovery and further proceedings.




1
  We refer to the parties by their first names for ease of reference and intending
no disrespect. James, Nancy, and Mary are collectively referred to as
"plaintiffs."
                                                                          A-2897-17T3
                                        2
                                        I.

        When viewed under the summary judgment standard applicable to the

motion judges prescribed by Rule 4:46-2(c), the record establishes that decedent

died on September 30, 2016. She was survived by her brothers, Frank Papiano

and Peter Papiano;2 her niece, Frances; her nephew, James; her stepdaughter,

Nancy; and her friend, Mary. Frances and James are siblings. On October 11,

2016, the December 29, 2014 will was admitted to probate by Frances. The

2008 will was prepared by decedent's "long-time attorney," William Gilson,

Esq., executed by decedent on April 11, 2008, provided her brothers and Mary

with legacies of $50,000 each, and created a trust for decedent's horses, who

were cared for by Mary, and referred to by decedent as her "kids." Nancy was

left a property at 768 Gershal Avenue in Pittsgrove Township. The residuary

estate was bequeathed to James and Frances in equal shares. The seven-page

2008 will named Frank as executor and James as the alternate executor and

trustee.

        In contrast, the 2014 will was not drafted by Gilson, bequeathed $50,000

and another Pittsgrove property located on Gwynwood Drive to James , and left


2
    Frank and Peter are not involved in these appeals.
                                                                        A-2897-17T3
                                         3
the residuary estate solely to Frances. Notably, the 2014 will did not provide a

trust for the horses or bequeath anything to decedent's brothers, Nancy, or Mary.

Frances was named executrix and James was named as alternate executor. The

2014 will was only three pages in length, and unlike the 2008 will, it did not

delineate instructions for the executor and trustee relative to liquidating

properties, making distributions, or authorizing the right to compromise any

claims or litigation on behalf of the estate.

       James certified that in Spring 2011, decedent gave him an envelope

containing documents pertinent to her investments, which she asked him to store

in a secure place because he would need them upon her death. As per her

instructions, James placed the envelope in a safety deposit box.

       Sometime in 2012, decedent's health declined. 3      Mary certified that

decedent became confused and hallucinated, and regularly had "conversations"

with her deceased husband. In his verified complaint, James stated decedent

thought there were people or animals in her cellar and attic, and that her

deceased husband and mother were present in the home. James further verified




3
    No medical records were mentioned in the record.


                                                                         A-2897-17T3
                                         4
that decedent began having issues with her balance, fell often, and would not

walk to her mailbox for fear of falling.

       At the end of 2013, decedent was diagnosed with a form of Parkinson's

disease and was prescribed medication. 4 James felt that the medication had an

adverse effect on decedent because she would "leave her disposable underwear

out . . . food was left out, dishes were not cleaned, laundry was piled up, [and]

the bed linens were soiled . . . ." James claims "a serious medical issue arose[,]"

regarding his health in 2014 that prevented him from caring for decedent as he

had been doing. Frances assumed decedent's care in the summer of 2014 and

became her Power of Attorney (POA). Mary certified that after Frances took

over decedent's care and until her demise, Frances would regularly speak for

decedent in a controlling manner and finish her sentences. Plaintiffs argue that

Frances unduly influenced decedent, who lacked requisite mental capacit y,

coerced her into revoking her 2008 will, and compelled her to name Frances as

the primary beneficiary under the 2014 will.

       By February 2015, aides were hired to assist decedent, who could no

longer get out of a chair, control her bladder, speak, or hold a meaningful




4
    The name of the medication was not provided.
                                                                           A-2897-17T3
                                           5
conversation. Pursuant to her POA, Frances arranged for decedent's horses to

be sold in February 2016, unbeknownst to decedent and plaintiffs.

      On October 11, 2016, Frances submitted the 2014 will to probate and

notices of probate were issued. James received his notice in November 2016.

He claims the only information Frances provided him with was the estate's debt,

exceeding $200,000 in back taxes. After James's wife, Anna Papiano, returned

from a trip in February 2017 and wanted to place her passport in the safety

deposit box that contained the envelope decedent gave James years earlier, he

discovered the 2008 will and compared it to decedent's 2014 will. He certified

the 2014 will seemed "odd" and very different from what decedent indicated her

intentions were to him, such as setting up a trust for her horses, and that he and

Frances would share her estate assets equally. He felt the 2008 will expressed

decedent's true intentions, unlike the 2014 version.

      James filed a verified complaint on March 13, 2017, seeking to set aside

probate of the 2014 will, admit the 2008 will to probate, remove Frances as

executrix, and direct her to provide an accounting of the estate. Frances moved

for summary judgment on July 21, 2017, in lieu of filing an answer, which James

opposed. Frances's motion was granted on September 8, 2017. Thereafter,

James filed a motion for reconsideration on September 28, 2017, and he also


                                                                          A-2897-17T3
                                        6
filed a motion for leave to file and serve an amended complaint to include causes

of action for undue influence, breach of fiduciary duty, and fraud on September

29, 2017.    Frances opposed both motions.      Following oral argument, both

motions were denied on January 19, 2018. James filed a notice of appeal on

March 2, 2018. Mary claims she had no knowledge of either will until she was

served with a copy of James's motion for leave to file and serve an amended

complaint on September 30, 2017.

      While the motion for reconsideration was pending, James filed a second

verified complaint, on November 16, 2017, joined by Mary, which involves the

other part of this appeal. The second complaint sought to invalidate the 2014

will as a product of incapacity, undue influence, fraud, deceit, and for damages

against Frances for breach of her fiduciary duty.

      On December 27, 2017, Frances filed opposition to the motion to dismiss

the November 2017 complaint. Nancy filed an emergent application on January

29, 2018, to intervene as an indispensable party in respect of the November 2017

complaint.

      Frances moved for summary judgment on March 23, 2018, and also

opposed Nancy's motion to intervene. Frank also filed a notice of motion to

intervene and for leave to file and serve an amended complaint on April 3, 2018,


                                                                         A-2897-17T3
                                       7
which Frances opposed. The second judge heard oral argument on April 20,

2018, and she granted Frances's motion for summary judgment, and denied both

motions to intervene.

      On appeal, James argues that the first judge abused his discretion in

denying his motion for reconsideration, failed to apply case law regarding

equitably tolling the time limits set forth in Rule 4:85, and placed undue weight

on James's failure to object to the disposal of decedent's horses. Plaintiffs argue

that summary dismissal of the November 2017 complaint by the second judge

constituted an abuse of discretion as well and warrants reinstatement of the

November 2017 complaint, discovery, and a hearing.

                                        II.

      The standard of review for the granting of a motion for reconsideration,

pursuant to Rule 4:49-2, is abuse of discretion. Cummings v. Bahr, 295 N.J.

Super. 374, 389 (App. Div. 1996). "An abuse of discretion 'arises "when a

decision is made without a rational explanation, inexplicably departed from

established polices, or rested on an impermissible basis."'" Pitney Bowes Bank,

Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015)

(quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). We have

found that reconsideration is only appropriate for cases "which either (1) the


                                                                           A-2897-17T3
                                        8
[c]ourt has expressed its decision based upon a palpably incorrect or irrational

basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to

appreciate the significance of probative, competent evidence." Fusco v. Bd. of

Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria

v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

      The decision is "within the sound discretion of the [trial] court and is to

be exercised 'for good cause shown and in the service of the ultimate goal of

substantial justice.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super.

408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220

N.J. Super. 250, 264 (App. Div. 1987)). "This court may only disturb the

decision below if it finds error which is 'clearly capable of producing an unjust

result.'" Ibid. (quoting R. 2:10-2).

      The first judge determined that James's complaint was time-barred

because it was filed beyond the limitations established by Rule 4:85-1 which

provides:

            If a will has been probated by the Surrogate's Court or
            letters of testamentary or of administration,
            guardianship or trusteeship have been issued, any
            person aggrieved by that action may, upon the filing of
            a complaint setting forth the basis for the relief sought,
            obtain an order requiring the personal representative,
            guardian or trustee to show cause why the probate
            should not be set aside or modified or the grant of

                                                                          A-2897-17T3
                                        9
             letters of appointment vacated, provided, however, the
             complaint is filed within four months after probate or
             of the grant of letters of appointment, as the case may
             be, or if the aggrieved person resided outside this State
             at the time of the grant of probate or grant of letters,
             within six months thereafter. If relief, however, is
             sought based upon [Rule] 4:50-1(d), (e), or (f) or [Rule]
             4:50-3 (fraud upon the court) the complaint shall be
             filed within a reasonable time under the circumstances.

      The time limitations set forth in Rule 4:85-1 have been recognized as a

statute of limitations. See Marte v. Oliveras, 378 N.J. Super. 261, 267-68 (App.

Div. 2005). Frances submitted the 2014 will for probate on October 11, 2016,

and James did not contest it until March 13, 2017. In order to comply with Rule

4:85-1, his opposition should have been filed about a month earlier, on February

10, 2017.

      Rule 4:85-2 allows the time period to be extended by thirty days "by order

of the court upon a showing of good cause and the absence of prejudice." The

judge determined that James failed to present good cause to justify the delay,

because he

             possessed the 2008 will as early as 2011. He alleges
             his deceased aunt told him to open it upon her death,
             but for some reason he did not open the envelope
             containing the 2008 will in September 2016[,] and
             instead waited until mid-February 2017. He claims it
             is only then that he found he was not sharing equally in
             the residuary estate[,] and under the 2014 will his sister


                                                                          A-2897-17T3
                                        10
             was the sole legatee and executor. [James] himself is
             the cause of the delay.

      The judge focused on a landmark case, In re Will of Landsman, 319 N.J.

Super. 252, 263 (App. Div. 1999), which held that Rule 4:85-1 was relaxed when

the executor "stonewalled" relatives about a will and estate information. He also

addressed In re Karamus, 190 N.J. Super. 53, 62 (App. Div. 1983), where the

time constraints were enlarged for an infant claimant, and In re Estate of

Thomas, 431 N.J. Super. 22, 30 (App. Div. 2013), where we held the timeliness

of an action for a putative daughter for a declaratory judgment that she was the

intestate decedent's only child and sole heir was governed by the doctrine of

laches as opposed to the two-year statute of limitations under N.J.S.A. 3B:5-10

and 3B:23-19(a) and (c). In his oral decision on summary judgment, the first

judge stated that Thomas represented "a gross example of how miscarriage of

justice was played out[,]" but that none of these cases were applicable because

they are factually different than the current case. The judge found there was no

good cause to extend the deadline, and the facts here were not analogous to those

in Thomas.

      These cases granted extensions based on Rule 4:50-1(f), which the judge

did not consider on summary judgment, and by Rule 4:85-2. If relief is sought



                                                                         A-2897-17T3
                                      11
under Rule 4:50-1(d), (e), or (f), the statute of limitations may be extended to "a

reasonable time under the circumstances." R. 4:85-1. Rule 4:50-1 provides:

             [T]he court may relieve a party . . . from a final
             judgment or order for the following reasons:

                   ....

             (d) the judgment or order is void;

             (e) the judgment or order has been satisfied, released or
             discharged, or a prior judgment or order upon which it
             is based has been reversed or otherwise vacated, or it is
             no longer equitable that the judgment or order should
             have prospective application; or

             (f) any other reason justifying relief from the operation
             of the judgment or order.

             [R. 4:50-1.]

      An application for dismissal of this type of action based on timeliness

requires consideration of both the specific time-bar contained in Rule 4:85-1 and

the equitable considerations referred to in Rule 4:50-1. The first judge did not

address whether exceptional circumstances existed under Rule 4:50-1(f) when

deciding the summary judgment motion but did so upon reconsideration, finding

exceptional circumstances were absent to warrant relief under that rule because

James did not "allege with any specificity that his . . . sister attempted to deceive,




                                                                              A-2897-17T3
                                         12
mislead or misrepresent to him any of the matters relating to [decedent's] will."

We have said:

            [A]n action to set aside letters of administration filed
            beyond the time-frame contained in Rule 4:85-1 is
            informed by the principles recognized in the application
            of Rule 4:50-1(f). That rule permits relief from a
            judgment in the "interests of justice," the "boundaries
            [of which] are as expansive as the need to achieve
            equity and justice[.]" Consideration of this question is
            a truly fact-sensitive matter. Where either party raises
            a "sufficient question as to the merits of plaintiffs' case,
            courts may grant the application even where
            defendant's proof of excusable neglect is weak." In
            such instances, however, the court must be convinced
            that the movant's neglect was neither "willful nor
            calculated."

            [Thomas, 431 N.J. Super. at 34 (second alteration in
            original) (citations omitted).]

      In order for a litigant to seek relief under Rule 4:50-1(f), it must be proven

"that the circumstances are exceptional and that enforcement of the order or

judgment would be unjust, oppressive or inequitable." Pressler & Verniero,

Current N.J. Court Rules, cmt. 5.6.1 on R. 4:50-1 (2019) (citing U.S. Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 484 (2012)). While "[a] claim of undue

influence on the testator or a lack of testamentary capacity is not within [Rule]

4:50-1(f)[,]" Karamus, 190 N.J. Super. at 59, there are other issues present,

which require proper attention by the court. For example, there is a question of


                                                                            A-2897-17T3
                                       13
fact as to whether James knew or should have known that the envelope decedent

gave him included her 2008 last will and testament. And, this case potentially

includes exceptional circumstances, which would warrant relief under Rule

4:50-1(f).

      "Our courts have long adhered to the view that [Rule 4:50-1(f)'s]

boundaries 'are as expansive as the need to achieve equity and justice.'" Ridge

at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 98 (App. Div. 2014) (quoting

Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Often, a plenary hearing is

required to fully appreciate "whether justice is best served by the relaxation of

the time-bar . . . ." Landsman, 319 N.J. Super. at 263. In Landsman, our Court

found that undue influence over the decedent and "less than candid responses"

to an attempt to gain information, justified the otherwise late challenge to the

will. Ibid. Further, in Karamus, we allowed a nearly two-year delay, finding

exceptional circumstances because the plaintiff was not noticed of probate. 190

N.J. Super. at 62.

      In this case, decedent, who was not capable or caring for herself or

maintaining a conversation, ostensibly created a subsequent will that vastly

differed from her previous will. James claims he was unaware that the 2008 will

existed until he discovered it in February 2017, and he had no reason to believe


                                                                         A-2897-17T3
                                      14
another will was made prior to that point. He promptly met with two attorneys

and filed his verified complaint within a month of his discovery. There is no

evidence that he willfully or deliberately delayed commencing his action, as

found by the first judge. Moreover, no prejudice resulted from James's failure

to move more expeditiously to assert his claims. Prejudice is a critical element

in this analysis. The record does not reflect that administration of the estate was

very far along or that a disposition of plaintiffs' claims will require undoing of

anything already done.

      Reconsideration should only be utilized for cases in which the court has

"expressed its decision based upon a palpably incorrect or irrational basis" or

"did not consider, or failed to appreciate the significance of probative,

competent evidence . . . ." Cummings, 295 N.J. Super. at 384 (alteration in

original) (quoting D'Atria, 242 N.J. Super. at 401). Reconsideration should not

be pursued "merely because of dissatisfaction with a decision of the [trial]

[c]ourt." D'Atria, 242 N.J. Super. at 401.

      "The proper object of reconsideration is to correct a court's error or

oversight." State v. Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015) (finding

that the trial court "failed to appreciate the significance of the explanation given"

of statements by the witnesses). The judge abused his discretion in denying


                                                                             A-2897-17T3
                                        15
reconsideration by failing to correctly interpret the case law in respect of Rule

4:50-1(f), and not Rule 4:85-2. Further, the first judge completely discredited

the facts set forth in James's complaint regarding his explanation for the delay

in filing, warranting reversal, discovery, and a plenary hearing.

                                        III.

      James further argues that the first judge did not consider the facts in his

favor, contrary to the requisite summary judgment standard, and that the judge

disregarded his certification, which stated: "In . . . the spring of 2011, [d]ecedent

gave [him] an envelope with a number of documents in it . . . . [A]nd she asked

that [he] put that information along with other documents away indicating that

[he] would need it upon her death." James contends his certification could be

inferred to mean he knew or should have known that the 2008 will was included

within the documents, or that he did not, and that the judge mischaracterized this

statement in his opinion by stating James "alleges his deceased aunt told him to

open [the will] upon her death . . . ." We agree with James that the first judge

made an inappropriate finding of fact on this critical issue.

      Next, James argues that the first judge erred for not accepting his

contention that Frances committed fraud by probating the 2014 will, which she

knew was invalid due to decedent's incapacity, and finding his certification was


                                                                             A-2897-17T3
                                        16
"self-serving." When deciding a motion for summary judgment, "[t]he court

must look at the evidence and inferences which may reasonably be deduced

therefrom in a light most favorable to the plaintiff, and if reasonable minds could

differ . . . the motion should be denied." Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 536 (1995) (quoting Bell v. E. Beef Co., 42 N.J. 126, 129 (1964)).

"The motion court must analyze the record in light of the substantive standard

and burden of proof that a factfinder would apply in the event that the case were

tried." Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016). The record does

not suggest that the judge gave favorable inferences to James as the non-moving

party. Moreover, James moved with alacrity once he received notice of probate.

Thus, we reject the contention that James unduly delayed in seeking relief and

we conclude that dismissal of his complaint on summary judgment grounds and

denial of his motion for reconsideration was erroneous.

                                       IV.

      James next claims that the first judge improperly determined there was

insufficient information to declare decedent incapacitated, and James's fraud

claim was denied without a rational explanation.




                                                                           A-2897-17T3
                                       17
      Rule 4:50-2 provides that in cases of fraud, a motion shall be made within

a year. See Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:50-2

(2019). Rule 4:50-3 states:

            A motion under [Rule] 4:50 does not suspend the
            operation of any judgment, order or proceeding or
            affect the finality of a final judgment, nor does this rule
            limit the power of a court to set aside a judgment, order
            or proceeding for fraud upon the court or to entertain
            an independent action to relieve a party from a
            judgment, order or proceeding.

      In Tara Enterprises Incorporated v. Daribar Management Company, we

upheld the interpretation of Rule 4:50-3 to allow that relief "may be obtained

'without limitation as to time.'" 369 N.J. Super. 45, 52 (App. Div. 2004) (quoting

Shammas v. Shammas, 9 N.J. 321, 327 (1952)). The court did not allow an

extension because the judgment plaintiff sought to amend "was not obtained by

fraud but rather was obtained to provide redress for [] fraud[ulent]" conduct in

a Pennsylvania court, and found that there was no authority to amend the trial

court's judgment six years later by the addition of new parties. Id. at 53. The

purported fraudulent conduct involved the holder of a promissory note

confessing to judgment in Pennsylvania, after having a judgment entered against

him in New Jersey. Id. at 51.




                                                                          A-2897-17T3
                                       18
      The facts here are distinguishable as far less time had passed. Frances

also misconstrues James's argument, arguing that his claims relative to

decedent's incapacity are fraudulent. James contends that Frances submitted a

fraudulent will to the probate court, and the first judge improvidently denied

James an opportunity to conduct discovery on this disputed issue of material

fact. We agree.

      The statute of limitations for claims of fraud begins to run "only from the

discovery of the fraud or the time when, by reasonable diligence, it could have

been discovered." Lopez v. Swyer, 62 N.J. 267, 275 n.2 (1973). In Thomas,

this court noted that a second cause of action sought by the plaintiff, to establish

parentage, was filed within the two-year statute of limitations, and rejected "the

contention that plaintiff unduly delayed in seeking relief." 431 N.J. Super. at

30. James arguably discovered potential fraud upon reading the 2008 will in

February 2017, and moved to amend his complaint to allege fraud, deceit, undue

influence, and incapacitation on September 28, 2017, with the one -year time

period provided by Rule 4:50-1.

      Further, decedent's incapacity should not have been determined solely

based on the complaints and motions filed. James and plaintiffs should have

been given the opportunity to serve paper discovery, subpoena decedent's


                                                                            A-2897-17T3
                                        19
medical records, and depose her doctors as to the disputed issue of her

competency.    The first judge expressed his concern "with the proofs" of

decedent's incapacity, stating "[t]here is no evidence here other than the

statements that are made which are completely self-serving by the movant which

. . . [decedent] had hallucinations and thought she saw the images of her

deceased husband and perhaps strangers in the house prior to her death." These

allegations raise serious questions as to material facts, warranting reversal,

discovery, and a plenary hearing.

                                       V.

      The companion appeal arises from the grant of Frances's motion for

summary judgment and dismissing plaintiffs' November 6, 2017 complaint, as

memorialized in an April 20, 2018 order, which was decided by a second judge

who found the prayers for relief were barred by the doctrine collateral estoppel.

We disagree.

      The November 2017 complaint sought to invalidate the 2014 will as a

product of incapacity, undue influence, fraud, and deceit, and sought damages

against Frances for breach of her fiduciary duty.

      With regard to Mary, the second judge agreed with the first judge finding

that her claim was time-barred:


                                                                         A-2897-17T3
                                      20
              [I]t cannot be that a party by avoid the time constraints
              required by [Rule] 4:85-1, by bringing a claim that
              presenting a will for probate constitutes a fraud, that
              would then permit that party, who has already been
              barred by [R]ule 4:85-1 on all other claims, to then
              proceed in a second complaint alleging all the same
              facts except for that fraud claim, to then be permitted a
              second legal analysis and a second legal standard for
              the time period for which the claim has been brought.

      The second judge further found that plaintiff's claims were untimely under

Rule 4:85-1. Suspicious factors were raised by the second judge, such as Nancy

allegedly not being informed of decedent's death but she continued to reside in

the Pittsgrove home, that decedent's long-time attorney did not prepare the 2014

will, and the level of "stonewalling" that occurred in Landsman was absent here.

      As to Mary's claims, the second judge found she was decedent's friend,

and therefore, not entitled to notice of probate, and that Mary failed to comply

with Rule 4:85-1 by not bringing this action within one year.

      We apply the same standard as the trial court for summary judgment. RSI

Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018); Globe Motor

Co., 225 N.J. at 479. Further, a cause of action barred by a statute of limitations

is also reviewed de novo. Catena v. Raytheon Co., 447 N.J. Super. 43, 52 (App.

Div. 2016).




                                                                           A-2897-17T3
                                        21
      Mary also argues the statute of limitations of Rule 4:85-1 should be

relaxed to excuse her one year delay in filing, and Rule 1:1-2 applies, which

provides: "Unless otherwise stated, any rule may be relaxed or dispensed with

by the court in which the action is pending if adherence to it would result in

injustice."

      Mary also claims that the second judge failed to consider the factors set

forth in Jansson v. Fairleigh Dickenson University, 198 N.J. Super. 190, 195

(App. Div. 1985) to determine whether Rule 1:1-2 or Rule 4:50-1(f) should be

relaxed here. The court must consider: (1) "the extent of the delay"; (2) "the

underlying reason or cause"; (3) the fault of the litigant; and (4) "the prejudice

that would accrue to the other party." Ibid. In Jansson, we excused a three-year

delay because the plaintiffs' attorney failed to answer interrogatories , and the

case was dismissed. Id. at 192. Upon retaining new counsel, plaintiffs moved

to vacate the dismissal, which was originally denied. Ibid. We found plaintiffs

were "entirely blameless," and that defendant would not be prejudiced by

allowing the action to continue. Id. at 195.

      Mary relies upon the holdings in Landsman, Karamus, and In re Green's

Estate, 175 N.J. Super. 595, 596 (App. Div. 1980), where eighteen-month,




                                                                          A-2897-17T3
                                       22
twenty-three month, and eight-month delays, respectively, were permitted under

Rule 4:50-1(f).

      Mary also argues that she should have been granted an extension because:

(1) the delay was ten months, which is comparable to the cases she cited; (2) she

did not have standing to challenge the 2014 will because she was not a

beneficiary, and could not bring an action until she was informed of the 2008

will; (3) she is without fault because she did not know about either will; and (4)

Frances would not be disadvantaged or prejudiced by having to defend against

her claim.

      Rule 4:50-1(f) should be extended whenever necessary to achieve equity

and justice. Ridge at Back Brook, 437 N.J. Super. at 98. There is a genuine

issue of material fact in respect of what level of fault, if any, Mary bears in the

delay of her filing warranting discovery and a plenary hearing. Frances will not

be prejudiced by the continued maintenance of this action, other than having to

defend against plaintiffs' claims on the merits, which is the "type of prejudice

that carries no weight in these circumstances." Thomas, 431 N.J. Super. at 35.

      In Thomas, we considered the question of "whether the 'interests at stake'

and 'our court rules' overarching goal of promoting the fair and efficient

administration of justice' would be undermined by the continued maintenance


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                                       23
of plaintiff's action . . . even though the complaint was filed . . . beyond the

. . . time bar sustained in Rule 4:85-1." Thomas, 431 N.J. Super. at 32 (quoting

Ragusa v. Lau, 119 N.J. 276, 283-84 (1990)). "Disposition of the competing

equities necessarily turns on the factual circumstances, which, in this case,

should have been viewed in the light most favorable to plaintiff . . . ." Ibid.

      Our Court found in Thomas that Rule 4:50-1(f) applied because although

the plaintiff knew the decedent had passed away, she did not know that he died

intestate, or where to obtain information regarding the estate, and the executor

refused to answer her inquires. Ibid. Finding that plaintiff did not willfully or

deliberately delay the action, the Court found that exceptional circumstances

existed to allow a ten month delay in filing. Similarly here, Rule 4:50-1(f) may

have applicability because Mary knew that decedent passed away, but she did

not have knowledge of the 2008 will until September 2017, and arguably no way

of knowing that a prior will existed. We conclude summary judgment was

prematurely granted as to Mary's claim.

      While recognizing that no specific discovery rule is provided in Rule 4:85-

1, Mary next argues that the second judge failed to consider situations where the

rule was extended to persons unaware of their injury until after the statute of

limitations expired. The discovery rule is a doctrine which provides that "in an


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                                       24
appropriate case a cause of action will be held not to accrue until the injured

party discovers, or by an exercise of reasonable diligence and intelligence

should have discovered that he may have a basis for an actionable claim."

Lopez, 62 N.J. at 272.

      Mary relies on personal injury cases where the statute of limitations was

tolled because plaintiffs were unaware of the negligence and harm inflicted upon

them until after the statute of limitations had run.5 Additionally, courts of equity

have held that, "in fraud cases, the limitations period does not commence until

the fraud was discovered, or through reasonable diligence should have been

discovered." Catena, 447 N.J. Super. at 53.

            The discovery rule is "essentially a rule of equity."
            While statutes of limitations "are designed to stimulate
            litigants to pursue their actions diligently," the
            discovery rule mitigates "the unfairness of barring
            claims of unknowing parties." The discovery rule is
            designed "to avoid harsh results that otherwise would
            flow from mechanical application of a statute of
            limitations."

            [Ibid. (citations omitted).]




5
   Lopez, 62 N.J. at 272 (discovery may be extended in a medical malpractice
claim); New Mkt. Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 425-26 (1968)
(discovery rule may be extended when defendant committed negligence);
Catena, 447 N.J. Super. at 55 (allowing an extension in a case involving fraud).
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                                        25
      By analogy, Mary could not have known about any possible cause of

action until James notified her of the 2008 will in September 2017, construing

the facts in her favor. Her delay is not unexplained, and is plausible under these

circumstances. We conclude that summary dismissal of Mary's complaint was

erroneous.

      Next, Mary joins in James's argument regarding the second trial judge's

misinterpretation of Landsman. She contends that in Landsman, we extended

the time restraints of Rule 4:85-1, and applied Rule 4:50-1(f) for two reasons:

(1) the plaintiff was stonewalled by the executor, preventing her from

discovering relevant information about the estate, and (2) the plaintiff was

unable to establish standing to the will until she learned of the existence and

terms of a prior will. Mary interprets this second prong to support her position

that she did not learn of decedent's 2008 will until September 2017, thereby

preventing her from having standing to challenge the 2014 will until then.

      As stated above, in Landsman, we held that the plaintiff "had no

knowledge of any prior wills and was stonewalled in her efforts to obtain such

information" by the executor. Landsman, 319 N.J. Super. at 263. The trial court

found the record supported plaintiff's claim that she did not learn of the prior

will until eighteen months after probate. In a similar vein, Mary alleges she did


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                                       26
not learn of decedent's prior will until ten months after James notified her of

same. There was no motive for Mary or plaintiffs to wait in commencing their

actions, since delay would confer no benefit to them, and only had the potential

to jeopardize their claims. We therefore reverse the summary judgment that

dismissed Mary's and plaintiffs' complaint on timeliness grounds.

                                         VI.

        The plaintiffs' final argument is that because the first judge erred in

granting summary judgment to Frances, the decision to dismiss Nancy's motion

to intervene was also an error. Rule 4:85-1 allows "[o]ther persons in interest .

. . [to] apply to intervene in the action." Rule 4:33-1 provides:

              Upon timely application anyone shall be permitted to
              intervene in an action if the applicant claims an interest
              relating to the property or transaction which is the
              subject of the action and is so situated that the
              disposition of the action may as a practical matter
              impair or impede the ability to protect that interest,
              unless the applicant's interest is adequately represented
              by existing parties.

        Nancy's main interest in this action is the Pittsgrove property, where she

has lived with her family for more than a decade. This property was purchased

by her father, who was decedent's husband. The property is not specifically

mentioned in decedent's 2014 will, but was bequeathed to Nancy in the 2008

will.

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                                         27
      A motion to intervene should be liberally viewed. Atl. Emp'rs v. Tots &

Toddlers Pre-School Day Care Center, Inc., 239 N.J. Super. 276, 280 (App. Div.

1990). Nancy, therefore, would have an interest in the action if the case went

forward to determine whether fraud or deceit took place. The court, however,

"has the discretion to determine the timeliness, under all the circumstances, of

the intervention application, and may deny the application if deemed untimely."

Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3 on R. 4:33-1 (2019).

Similar to Mary, Nancy was arguably unaware of the 2008 will until James

discovered it and notified her. We reverse the order that denied Nancy's motion

to intervene.

      In summary, we reverse the orders granting summary judgment, denying

reconsideration, and denying intervention. The matter is remanded for the

purpose of conducting discovery, and for a plenary hearing consistent with our

opinion. Jurisdiction is not retained.

      Reversed and remanded.




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