                        NOT FOR PUBLICATION WITHOUT THE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-0154-15T2

IN THE MATTER OF EVELYN
WORLEY, an incapacitated
person.
_____________________________

DWIGHT WORLEY and DANIEL
WORLEY,

        Plaintiffs-Appellants/
        Cross-Respondents,

v.

RICHARD WORLEY,

     Defendant-Respondent/
     Cross-Appellant.
_____________________________

              Argued February 6, 2017 – Decided March 28, 2017

              Before Judges Nugent and Currier.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Gloucester County,
              Docket No. P-13-00468.

              Ronald P. Sierzega argued the cause for
              appellants/cross-respondents      (Puff      &
              Cockerill, LLC, attorneys; Susan C. Carpenter,
              on the briefs).

              Dante B. Parenti argued the cause for
              respondent/cross-appellant (Hoffman DiMuzio,
             attorneys; Mr. Parenti and Ryan S. Hoffman,
             on the briefs).

             Thomas A. Hagner argued the cause for
             respondent Evelyn Worley (Hagner & Zohlman,
             LLC, attorneys; Mr. Hagner and Thomas J.
             Hagner, on the briefs).

PER CURIAM

       In   this   matter,      we     review     the    judicial   determinations

rendered,     subsequent     to        a    trial,      regarding   the     care     and

guardianship       of   Evelyn       Worley      (Evelyn)1    and   the    subsequent

disposition of her assets.             Two of Evelyn's three surviving sons,

Dwight and Daniel,2 commenced this action against their brother

Richard, following the execution of a Power of Attorney (POA) and

attempted modification to the named beneficiary on an investment

account.     After a review of the record in light of the applicable

legal principles, we affirm the rulings as to the validity of the

POA    executed    in   favor     of       Richard,     but   reverse     the   court's

determination that changed the beneficiary on a financial account

to include all of Evelyn's surviving sons.

                                           I.

       We derive our summary of the facts from the evidence presented

at trial over several days in April and May 2015.                   In 2009, Evelyn


1
  The parties are referred to by their first names for the clarity
and ease of the reader as they share a last name.
2
    A fourth son, Roger, predeceased Evelyn.

                                             2                                  A-0154-15T2
was diagnosed with mild dementia and potential onset of Alzheimer's

disease.   At the time, she was living in her own home and managing

her daily affairs.     Daniel and Richard assisted her with some

tasks around the house and took her to medical appointments.

Richard had begun handling Evelyn's checking account in 2007 in

order to pay her bills.     He did not have access to her savings

account.

      Dwight handled Evelyn's finances, was named executor in

Evelyn's 2008 Will, and was her living representative in her health

care directive prepared that same year.   Dwight had her sign a POA

in 2005.     In the Wills executed by Evelyn in 1993 and 2008, she

distributed her assets equally among her sons.         The parties

stipulated that Evelyn was competent when she signed all of these

documents.

                                A.

     While working as a financial advisor in 1997, Dwight had

assisted Evelyn in opening a Transfer on Death (TOD) account with

his company, Waddell & Reed.   He explained to his mother that the

money in the account was hers as long as she was alive.      Dwight

was designated as the sole beneficiary on the account, and he told

his mother that after her death, the money would pass to him.    The




                                 3                          A-0154-15T2
account was initially funded with a $100,000 investment.3                     The

existence of this account was unknown to all of the other brothers

until this litigation.          Dwight testified that, as a seller of

financial products, he had a confidential relationship with his

clients and could not discuss a client's account with anyone else,

including its existence.

     In    September    2011,   Dwight    sent   a   letter   to   his    mother

enclosing a POA        for a different investment account.                Evelyn

executed the form which designated Dwight as her POA.

                                     B.

     In    Fall   2011,   Evelyn's    sons   began     investigating       local

assisted living facilities, anticipating that Evelyn might require

more care than could be given to her at home.                 A facility was

chosen and Evelyn began living there in November 2011.               Although

amenable to the move at first, Evelyn was complaining by the end

of the third week and told each of her sons that she wanted to go

home.

     On December 10, 2011, Richard brought Evelyn to meet with an

attorney, Christopher Manganello, to discuss the preparation of a

new POA.    Manganello prepared the document which Evelyn signed on

December 14.      The attorney made a video recording of his meeting


3
  At the time of the hearing in 2014 the account was valued at
$250,000 and represented approximately 42% of Evelyn's estate.

                                      4                                  A-0154-15T2
with Evelyn that day.     He explained that he did so "to make sure

there was some type of record to show that this woman was oriented

as best as she could be at a time and place and really meant to

do what we were trying to do that day."     He also suspected that

the new POA would become an issue between the brothers. He stated:

"So, I wanted some type of documentation for two reasons; to help

protect my client and her wishes, but also to protect me as well."

     Manganello testified that Evelyn was clear that she wanted

Dwight removed from "having decision making power as [her] power

of attorney and also to be able to ensure that she could leave

[the assisted care facility]."     Evelyn told him that Dwight did

not communicate with her and that she felt more comfortable with

Richard.   Manganello described Evelyn as "feisty," "engaging," and

"funny."   "She seemed very with it . . . .    She did not seem in

any way disengaged or . . . any different than anybody else that

comes to my office.   She was of sound mind and . . . capacity."

     Richard removed Evelyn from the assisted care facility in

late December 2011.     She remained in her home with a health care

aide initially, and then full-time live-in help was required.      In

November 2013, Evelyn moved to a nursing home.4



4
  At the time of the appellate oral argument in February 2017,
Evelyn reportedly was still living in the nursing home.


                                  5                         A-0154-15T2
                                   C.

      After the execution of the POA in December 2011, Richard

learned about the Waddell and Reed account and contacted the firm

on several occasions.     He advised the firm that he wished to have

the   existing   POA   designating    Dwight    replaced   with    the     newly

executed one.      There was no discussion of the beneficiary on the

account.

      Richard contacted Waddell again in March 2012 requesting a

history of the account.          The account representative needed to

confirm with Evelyn her acquiescence with the request.             During the

conversation, Evelyn was unable to remember her social security

number and she asked Richard for the information.                 Later that

month, Richard called Waddell and stated that his mother "was made

aware of some problems on her account as far as the way that it's

set up and everything.      She wanted to make some changes today."

The account representative again spoke with Evelyn who was unable

to provide her social security number and date of birth without

prompting   from    her   son.       Evelyn    gave   permission    for       the

representative to speak with Richard, who requested that Dwight

be removed as the designated beneficiary and that Evelyn's estate

be substituted as the beneficiary on the account.             Richard also

asked for an address change on the account. After being instructed



                                      6                                  A-0154-15T2
to send a written request for change of beneficiary, Richard asked

that the original application form be provided to him as well.

     A senior regulatory counsel and vice president of Waddell,

Amy Rush, testified at the trial.        Rush explained the training

provided to the company's customer service representatives on

senior abuse issues.   She said both March conversations raised a

"red flag" due to Evelyn's inability to remember her social

security number and birth date, and the substance of the questions

being asked by Richard.   Rush testified further that she received

a court order from Dwight during this timeframe that voided

Richard's POA.   The order required Richard to serve this notice

on Waddell, which he had not done.      She described this as "a huge

red flag" and she instructed the customer service department not

to distribute any money from the account, send out statements, or

change the account's address.        Rush stated that the beneficiary

on the account was not changed as instructed by a court order that

was subsequently presented to Waddell, and because Evelyn had

never directed the change herself.

                                D.

     In January 2012, Manganello prepared a Will and healthcare

directive for Evelyn's signature.        The only change made to the

Will was to substitute Richard as the executor; he was also named

as the healthcare representative on the living will.       Manganello

                                 7                            A-0154-15T2
testified that he was certain that Evelyn wanted these documents

prepared.

                              II.

     In March 2012, Dwight and Daniel (plaintiffs) presented an

order to show cause and verified complaint seeking (1) to nullify

the December 2011 POA as a product of the undue influence on Evelyn

by Richard (defendant); and (2) a disclosure of any financial

changes made to Evelyn's accounts by Richard during his capacity

as designated POA.   The order to show cause was granted.

     On April 3, 2012, the chancery judge entered a joint consent

order in which the parties agreed to its provisions until the

final resolution of the matter.   The order provided that: (1) the

POA in favor of Richard executed by Evelyn on December 14, 2011

was void; (2) the will prepared by Manganello and executed by

Evelyn was void; (3) Evelyn's financial assets would be managed

by Dwight;5 (4) Richard would manage Evelyn's checking account for

her ordinary and usual monthly expenses; (5) Evelyn was to undergo

a competency examination; and (6) Gerald Sinclair, Esq., was

appointed by the court as counsel for Evelyn.   The order required

service by Richard's counsel on all of Evelyn's health care


5
  The order further clarified that no funds would be withdrawn
from the accounts other than to care for Evelyn and that there
would be no change to title or beneficiary designation on any
account owned by Evelyn.

                                  8                         A-0154-15T2
providers, assisted living facilities, and applicable financial

institutions.

     Plaintiffs amended the complaint in March 2013, seeking their

appointment as co-guardians of their incapacitated mother and her

estate.     In his answer and cross-claims, Richard requested that

he be appointed guardian for Evelyn.           He also alleged that the

creation of the Waddell investment account was a breach of the

fiduciary duty owed by Dwight.

                                    III.

     At   trial,   both   parties    presented    witnesses   to   testify

regarding Evelyn's mental capacity and cognitive functioning.

Cynthia Furman, a registered nurse with Gloucester County Senior

Services, stated she was contacted by Evelyn's family in November

2010 to assess Evelyn and provide care options for her.

     Nurse Furman noted that although Evelyn was able to take care

of her personal needs and hygiene, she required assistance from

others to complete housework and shopping, prepare meals, take

medication, and manage her finances.         She found Evelyn to be only

minimally impaired in her decision-making, although she exhibited

difficulty    making   decisions    in   unfamiliar   circumstances.      In

Furman's opinion, Evelyn's short term and procedural memory were

impaired.



                                     9                             A-0154-15T2
     Mary Ann Poekert was the home health companion assigned to

Evelyn from 2010 to 2012.          While working with Evelyn in 2011,

prior to her admittance to the assisted living facility, Poekert

stated that "[Evelyn] was having a lot of trouble remembering

. . . . Then she was telling me that . . . there's people in here

having parties at night.         And she told me there was a man that

would come into her bedroom and try and get her."           She noticed an

improvement in Evelyn after she returned from the assisted living

facility.     Poekert also recalled that Evelyn told her that "she

wanted Rick to take care of everything, to be her power of

attorney, to take care of her, to do whatever needed to be done."

Poekert     denied   knowing     anything   about    Evelyn's    investment

accounts, but stated that Evelyn knew Dwight had control of an

account and said "she didn't want one son having control of

everything." In response to questioning, Poekert added that Evelyn

wanted her sons to all be treated the same.          "[S]he said when she

passed away, she wanted everything to be, you know, divided up

evenly."

     Plaintiffs      presented   Barry    Rovner,   M.D.,   a   psychiatrist

specializing in Alzheimer's disease, as an expert.               Dr. Rovner

reviewed Evelyn's medical records and listened to Manganello's

video tape.    He concluded that Evelyn was disoriented to time, and

she did not understand why she was at the attorney's office in

                                     10                              A-0154-15T2
December 2011.    Based on the information presented to him, Dr.

Rovner opined that Evelyn lacked the capacity to understand what

a POA was and lacked the ability to execute her Will knowingly.

     Plaintiffs   also       proffered      the     testimony    of     Danielle

DiGregorio,   Psy.D.,        who    had     performed    neuropsychological

evaluations of Evelyn in 2012 and 2013 at the request of Sinclair.

A month before the trial, plaintiffs advised they were naming Dr.

DiGregorio as an expert witness.           No new report was provided.          At

the de bene esse deposition of Dr. DiGregorio taken several days

before the commencement of trial, plaintiffs attempted to elicit

her opinion of Evelyn's mental capacity at the time of the signing

of the POA and the Will.           The execution of those documents had

taken place nine months before the doctor met Evelyn, therefore,

that opinion was not contained in any of her reports.

     Defense counsel objected at the deposition and renewed the

objection at trial.      The chancery judge sustained the objection

and ordered the redaction of the expert's testimony regarding the

previously undisclosed opinion.

     Dr. DiGregorio performed a number of tests and concluded that

Evelyn was in the mild to moderate stages of dementia. At her

second   evaluation,    in    May    2013,    the    doctor     noted    further

deterioration in many areas of functioning.



                                      11                                 A-0154-15T2
     Mr. Sinclair, as court-appointed counsel, met with Evelyn on

five occasions, the first in April 2012.          During those visits,

Evelyn admitted she had memory lapses but was able to discuss her

children and grandchildren cogently.      Sinclair described her as

having mild dementia. The attorney asked Evelyn about the December

2011 POA on several occasions, and she consistently told him that

she "wanted Rick." She also consistently mentioned that she wanted

her three sons to share equally after her death.

     Sinclair issued three reports, each recommending that Richard

be appointed the guardian of his mother, of both her person and

her property.     He believed that Richard had shown the greatest

level of involvement with Evelyn and it was her own request.         The

attorney   felt   that   Richard   demonstrated    the   "aptitude   and

attitude" to be the guardian.

     Richard presented Pogos Voskanian, M.D., a neuropsychiatrist,

as his expert.    Dr. Voskanian described Evelyn as having a mild

degree of cognitive impairment in late 2011 and early 2012 but

opined that she had testamentary capacity at that time.              Upon

reviewing Manganello's video recording of the execution of the

POA, he found Evelyn's "speech was clear," "she provid[ed] good

reasons for her choices," and she indicated a desire to be informed

regarding her own care. "[E]lderly people do not know exact dates.

. . . It does not mean lack of testamentary capacity.          Actually

                                   12                           A-0154-15T2
people can be demented and still have testamentary capacity.

. . . Knowing the date is not [a] requirement."

                                  IV.

      On   June   29,   2015,   the    trial   judge   issued   a   lengthy

comprehensive oral decision.6     After setting forth her findings of

fact, she rendered several legal conclusions.            The judge first

found that there was a presumption of undue influence by Richard,

warranting the shifting of the burden of proof to him.                   She

described the special relationship between Evelyn and Richard and

the suspicious circumstances of the            execution of the POA at

Manganello's office.      Noting that the defendant must rebut the

presumption of undue influence by clear and convincing evidence,

the judge found that Richard had abided by his mother's wishes.

Her request was for him to remove her from the assisted care

facility in December 2011.       Based on the testimony and medical

records, the judge found that Evelyn had the ability to form an

opinion, express it, and she wanted to be heard about remaining

in her own home.    The judge stated: "If anything, Rick was doing

exactly what [Evelyn] wanted him to do, getting her back to her

home and out of the [assisted care facility]."



6
  An order reflecting the oral decision was issued on June 30,
2015.


                                      13                            A-0154-15T2
     In her decision, the judge relied on the testimony presented

regarding Dr. Morton's notes7 of his visits with Evelyn in late

2011.   On December 12, 2011, Dr. Morton wrote in an office note:

          It is clear to me that [Evelyn] would prefer
          that her son Rick be her power of attorney to
          help her with legal decisions . . . . I think
          that Evelyn will do well in her own home if
          she has someone there to assist her with meals
          and medicine . . . . Her dementia is mild, and
          she could enjoy her home for some time yet if
          she had someone there to assist her full time.

The doctor also noted that Evelyn was sharper and brighter after

the change in her medication.   The judge concluded:

          [Evelyn] had sufficient cognitive function to
          articulate her desire to live at home and her
          desire for Rick to be her POA.

               . . . .

          I am satisfied that the evidence established
          clearly and convincingly that Mrs. Worley
          wanted Rick to be her POA in November 2011 and
          that she had the capacity to communicate that
          decision and to sign a legal document
          implementing that decision.

     In addressing Evelyn's capacity to sign the Will in 2012, the

judge concluded to the contrary.     She stated: "There's no evidence

that Mrs. Worley told anyone that she wanted Rick to be the

executor of her Will . . . . So I'm satisfied that the proofs do


7
  Reports and office records of Dr. Morton of the Elmer Family
Practice are discussed with several witnesses and admitted into
evidence. Dr. Morton did not testify, and his reports and medical
records were not provided to us.

                                14                            A-0154-15T2
not establish clearly and convincingly that the Will was the

voluntary and knowing act of Mrs. Worley."    She, therefore, found

the POA valid and enforceable, but ruled the 2012 Will was invalid.

The judge declined to award any damages, finding that the early

departure fees for Evelyn's withdrawal from the assisted care

facility in 2011 was "money well spent" as Evelyn was happy to

spend an additional two years in her home.

     In addressing the TOD account, the judge determined that it

did not satisfy the requirements to be considered an inter vivos

gift.     She concluded that the very nature of the account, a

transfer on death, is that the money in the account is owned by

the holder of the account; the TOD "is a conditional gift that if

there is anything in the account at the time of death, it would

go to that named beneficiary."     The judge determined the account

was not an irrevocable relinquishment in ownership nor an outright

gift.     Relying on Sinclair's testimony that Evelyn wished all of

her sons to be treated equally, the judge ruled that the TOD

account beneficiary should be changed to designate all three sons

in equal shares.

     In a second order on June 30, 2015, the court found Evelyn

was an incapacitated person and unable to manage her own affairs.

Richard was appointed the guardian of the person and property of

Evelyn.

                                 15                         A-0154-15T2
      Plaintiffs filed a subsequent motion seeking a stay of the

transfer of financial authority from Dwight to Richard until the

resolution of the appeal, and an award of counsel fees for the

guardianship application, as well as for the costs and fees

incurred defending the POA granted to Dwight in 2005.                     Richard

cross-moved for counsel fees for his guardianship application.

      After hearing the parties' oral argument on August 12, 2015,

the   judge   determined    that     it    was   not    feasible   to   split      the

guardianship between Richard and Dwight because of the likelihood

of friction and further litigation.               In considering the requests

for   counsel   fees   under   Rule       4:86-4(e),     the   judge    noted      her

discretion to award fees if deemed appropriate.                 She stated that

by the time the matter reached trial, it was not about the

guardianship as Evelyn's mental condition had deteriorated.                          It

was "a fight between brothers."                Therefore, the judge found it

appropriate to deny attorney's fees for the majority of the action.

Plaintiffs were awarded $2500 for bringing the complaint and

defendant was awarded $2500 for his efforts in prosecuting the

guardianship.      The     parties    were       each   responsible     for     their

remaining attorney's fees and costs.8




8
  Plaintiffs' request for a stay of judgment pending appeal was
denied.

                                          16                                  A-0154-15T2
                                   V.

     On appeal, plaintiffs assert that the trial judge erred in

(1) altering the beneficiary designation on the TOD account; (2)

affirming the designation of Richard as Evelyn's POA and subsequent

guardian after finding a presumption of undue influence; (3)

barring certain testimony of Dr. DiGregorio; and (4) failing to

award legal fees and costs to plaintiffs incurred by them in the

pursuit of guardianship on Evelyn's behalf and in defending the

2005 POA.

     Defendant's cross appeal contends the judge failed to award

sufficient fees to him incurred in the defense of the 2011 POA.

     In considering these arguments, we are mindful of our limited

scope of review.       We will not "engage in an independent assessment

of the evidence as if [we] were the court of first instance." N.J.

Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433

(App.   Div.   2002)    (alteration   in   original)   (quoting   State   v.

Locurto, 157 N.J. 463, 471 (1999)).          "The factual findings of a

trial court are reviewed with substantial deference on appeal, and

are not overturned if they are supported by adequate, substantial

and credible evidence."       Manahawkin Convalescent v. O'Neill, 217

N.J. 99, 115 (2014) (citations omitted).               Such deference is

especially due when a trial judge's findings "are substantially

influenced by [the judge's] opportunity to hear and see the

                                      17                           A-0154-15T2
witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy."     Zanman v. Felton, 219 N.J. 199, 216 (2014)

(alteration in original) (citation omitted).

     However, we review the trial judge's determinations on legal

issues de novo.   A trial judge's "interpretation of the law and

the legal consequences that flow from established facts are not

entitled to any special deference."       Manalapan Realty, L.P. v.

Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted).

                                A.

     Mindful of these standards, we turn to a review of the POA

executed by Evelyn in favor of Richard in 2011.9         Plaintiffs

contend that the disparate rulings that the POA was not the product

of undue influence, but the Will signed several weeks later was a

result of undue influence are not supported by the credible

evidence in the record.    We disagree.

          [U]ndue influence is a mental, moral, or
          physical exertion of a kind and quality that
          destroys the free will of the testator by
          preventing that person from following the
          dictates of his or her own mind as it relates
          to the disposition of assets, generally by
          means of a will or inter vivos transfer in
          lieu thereof.

               . . . .



9
  Richard does not appeal the court's invalidation of the 2012
Will.

                                 18                         A-0154-15T2
                   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 Estate of Stockdale, 196 N.J. 275, 302-
              03 (2008) (citing Haynes v. First Nat'l State
              Bank, 87 N.J. 163, 176 (1981))].


     We       have    described        a     confidential        relationship         as

one where the "the relations between the parties are of such a

character of trust and confidence as to render it reasonably

certain that the one party occupied a dominant position over the

other   and    that   consequently         they   did   not    deal   on   terms     and

conditions of equality."          Estate of Ostlund v. Ostlund, 391 N.J.

Super. 390, 402 (App. Div. 2007) (quoting Blake v. Brennan, 1 N.J.

Super. 446, 454 (Ch. Div. 1948)).                 "[A]mong the most natural of

confidential relationships is that of parent and child."                      Pascale

v. Pascale, 113 N.J. 20, 34 (1988).

     The judge found Richard had a special relationship with his

mother.   All witnesses agreed that Richard spent the most time

with Evelyn and took care of her daily needs.                  Evelyn herself told

many of the witnesses that she wanted Richard to be her POA because

he listened to her and spent time with her.                      In assessing the

requirement      that   there     be       "additional        circumstances     of     a

                                           19                                 A-0154-15T2
suspicious character," In re Will of Rittenhouse, 19 N.J. 376,

378-79   (1955),   the    judge     noted    the     involvement    of   attorney

Manganello.     She stated: "Mr. Manganello did not speak to Mrs.

Worley outside of the presence of Rick.                 [He did] not clarify

whether he represented [Evelyn] or Rick.               [He did] not obtain at

least a primary care physician's opinion regarding her capacity."

     The judge found that the presumption of undue influence

existed regarding the POA, and we are satisfied that she correctly

shifted the burden to defendant to rebut the presumption.

     All agreed that Evelyn did not want to stay at the assisted

living facility.       Within several weeks of her admission, she was

voicing her desire to return to her home to everyone with whom she

spoke.    She   told     Sinclair   and     others    that   only   Richard    was

listening to her.      As the judge noted:

           Rick was acting on his mother's request in
           taking steps to obtain a POA and remove her
           from the [assisted care facility].       Mrs.
           Worley was sufficiently capacitated to have a
           say in whether she would live in facility or
           stay in her home with paid, in-home care
           service providers that she was well able to
           afford.

Evelyn knew what she wanted and knew that Richard was the one to

effectuate her desire – by obtaining a POA and removing her from

the care facility.       We are satisfied that the judge's conclusion

that Evelyn was not unduly influenced by Richard in obtaining the


                                      20                                  A-0154-15T2
POA for her removal from the care facility is supported by the

credible evidence in the record.

     In considering the 2012 Will, the evidence leads to a contrary

result.   Evelyn never voiced any desire to anyone to change the

executor on her Will.   She had executed at least two Wills prior

to the 2012 version; each had Dwight as the executor.    There was

no evidence presented that she desired to change the executor of

her Will in 2012 to Richard.    We are satisfied that the judge's

conclusion that Richard did not meet his burden of rebutting the

presumption of undue influence is supported by the record.

      We disagree with plaintiffs' argument that these rulings

cannot stand as they are contrary to one another.   With regard to

the POA and the 2012 Will, the judge considered the presumption

of undue influence and found plaintiffs had met their burden. When

the burden of rebuttal shifted to defendant, the court found it

was met in the case of the POA, but there was insufficient evidence

presented to rebut the presumption surrounding the Will.        As a

result, when each document was considered separately, differing

legal conclusions were properly reached.    Those conclusions are

supported by the credible evidence.

                               B.

     Fifteen years before this litigation arose, Evelyn opened a

TOD account with the financial services firm where Dwight was an

                               21                            A-0154-15T2
employee, thereby avoiding payment of fees and commissions.                 The

parties stipulated that she was competent when she opened the

account and that it was her signature on the application.               Dwight

was designated as the beneficiary of the account upon her death;

that designation never changed.         Evelyn executed Wills in 1993 and

2008   at    which    time   the   parties    stipulated   that    Evelyn   was

competent; the TOD account was not referenced in either Will.

Although Evelyn spoke on the phone several times with Waddell

representatives in 2012, she never requested a change in the TOD

beneficiary designation.

       After determining the TOD account was not an inter vivos

gift, and relying on Sinclair's testimony, the judge concluded

that Evelyn wished to treat her surviving sons equally and that

she had a "change of mind with respect to the TOD account."

       The   contradictory     evidence      presented,   however,   does   not

support the premise that Evelyn always treated her sons equally.

There was testimony that she gave Roger more than $100,000 during

his lifetime.        Daniel testified that in 1997, the same timeframe

as the establishment of the Waddell account with Dwight, his mother

offered him a gift of $100,000 that he declined.                  In addition,

there was testimony that there were bank accounts opened for one

or two of the grandchildren, but not all nine.             The assets in each



                                      22                               A-0154-15T2
Will executed by Evelyn were to be divided equally among the three

surviving sons; Roger's estate and heirs were not included.

     The testimony of Sinclair considered by the judge was offered

subsequent to the commencement of this litigation.      Evelyn was

aware of the contentious proceedings taking place among her sons

and expressed her sadness at its occurrence.     It is not unusual

under the circumstances that she would express the general premise

that she wished her sons to be treated equally.       Although the

judge relied on the testimony provided by Sinclair, the attorney

conceded that he never asked Evelyn specifically about the TOD

account or her desired beneficiary designation of it.

     Although well aware of the deference due the judge's decision,

we find it a leap to conclude that after so many years of the

beneficiary designation remaining unchanged, Evelyn's generalized

statement that she wanted all her sons to be treated equally after

her death was a statement of her probable intent to change the

beneficiary of the TOD account.      See Stephenson v. Spiegle, 429

N.J. Super. 378, 386 (App. Div. 2013) (emphasis added) (noting the

doctrine of probable intention may be used to reform mistaken

testamentary dispositions).

     Evelyn stated after the inception of this litigation that she

loved her three sons equally.     She was never specifically asked

about the TOD account, but provided generalized statements that

                                23                          A-0154-15T2
her three sons should be treated equally.       We are not satisfied

that the substantial credible evidence supported changing the

beneficiary    designation   on   this   non-probate    asset.       This

litigation centered on whether Evelyn was unduly influenced by

Richard to effect a POA in his favor and a new Will naming him as

executor.     There were no similar contentions regarding the TOD

account; there were no allegations that it was wrongly established

or that Evelyn was unduly influenced in her choosing just one of

her sons as the beneficiary of the account.     To the contrary, the

parties stipulated that she was fully competent at the time of the

initiation of the account.    As a result, we reverse the decision

of the court regarding the TOD account; the beneficiary of the

account remains Dwight.

                                  C.

     We turn to plaintiffs' argument that Richard, having been

found to have unduly influenced his mother, should not be Evelyn's

guardian.   In giving deference to the judge's finding based on her

ability to perceive witnesses and assess credibility, as we must,

we find this argument to be without merit.             The judge found

Sinclair's report recommending that the guardianship not be split

to be persuasive.    She noted the inability of Dwight and Richard

to cooperate throughout the litigation, and although the judge

recognized Dwight's skills as a money manager, she determined a

                                  24                             A-0154-15T2
shared guardianship would not be feasible based on the "likelihood

of friction and . . . further litigation."    We are satisfied that

the judge's finding that Richard's interests are synonymous with

those of Evelyn is supported by the evidence and his appointment

as her guardian is correct.

                                D.

       We briefly address plaintiffs' argument that the chancery

judge erroneously barred them from questioning Dr. DiGregorio on

an opinion that had not been included in her report.      After the

court ordered a competency exam, Evelyn was evaluated by Dr.

DiGregorio, a geriatric neuropsychologist, who also performed a

series of objective tests in August 2012.       In her report, she

concluded that Evelyn was cognitively incapacitated at that time.10

Plaintiffs identified the doctor as a fact witness who would

provide testimony regarding her evaluations.

       In preparation for trial, plaintiffs scheduled a de bene esse

deposition of Dr. DiGregorio. Several days before the deposition,

plaintiffs advised defendant that they intended to use the doctor

as an expert witness.       No new report nor amended report was

provided.11     At the deposition, plaintiffs' counsel sought to


10
  Dr. DiGregorio performed a second evaluation and rendered an
additional report in May 2013.
11
     See Rule 4:17-7.

                                 25                          A-0154-15T2
inquire of Dr. DiGregorio her opinion on the mental capacity of

Evelyn in December 2011 and January 2012 – eight months prior to

the doctor's first evaluation.

     We apply a deferential approach to the trial judge's decision

to admit expert testimony and review it against an abuse of

discretion standard.      Although an expert witness is generally

confined to the opinions contained in his or her report provided

in discovery, Conrad v. Robbi, 341 N.J. Super. 424, 440-41 (App.

Div.), certif. denied, 170 N.J. 210 (2001), "the logical predicates

for and conclusions from statements made in [an expert] report are

not foreclosed."    McCalla v. Harnischfeger Corp., 215 N.J. Super.

160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987).

     The judge found the sought-after new opinion was not a logical

predicate from the information and opinions set forth in the

doctor's expert report.    It was not expected that the doctor would

provide an opinion about the state of Evelyn's mental capacity

nine months prior to their first meeting and evaluation.         There

was no notice in the served reports of Dr. DiGregorio that she had

read medical reports from the applicable timeframe. The new opinion

was a complete surprise to defendant, leaving him without the

opportunity   of   effective   cross-examination   and   resulting    in

certain prejudice.    See Westphal v. Guarino, 163 N.J. Super. 139,

146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978) (noting that the

                                  26                           A-0154-15T2
opposing party must be protected from the effect of surprise and

prejudice).     We are satisfied that the trial judge did not abuse

her discretion in her decision to exclude the newly offered

opinion.

                                    E.

     Plaintiffs seek legal fees from (1) defendant for the breach

of his fiduciary duty for exerting undue influence when exercising

his POA; and (2) the Estate for legal fees and costs incurred in

defending the validity of the 2005 POA.          Defendant's cross-appeal

seeks legal fees for defending the POA determined by the court to

be valid and enforceable.

     New Jersey courts "have traditionally adhered to the American

Rule as the principle that governs the allocation of attorneys'

fees."   Occhifinto v. Olivo Constr. Co., 221 N.J. 443, 449 (2015)

(quoting Walker v. Giuffre, 209 N.J. 124, 127 (2012)).                    The

American Rule "prohibits recovery of counsel fees by the prevailing

party against the losing party."         In re Estate of Vayda, 184 N.J.

115, 120 (2005) (quoting In re Niles, 176 N.J. 282, 294 (2003)).

Notwithstanding New Jersey's "strong public policy against the

shifting   of   costs,"   counsel   fees   may   be   awarded   in   certain

circumstances.    Litton Indus. v. IMO Indus., 200 N.J. 372, 404-05

(2009) (quoting Vayda, supra, 184 N.J. at 120); see also R. 4:42-

9(a)(1)-(8).

                                    27                               A-0154-15T2
     One such circumstance exists when an executor or trustee

commits the tort of undue influence. "[A]n exception to the

American rule is created that permits the estate to be made whole

by an assessment of all reasonable counsel fees against the

fiduciary that were incurred by the estate."     Niles, supra, 176

N.J. at 298-99.   Plaintiffs request the estate be reimbursed the

monies expended by Richard to attorney Manganello for the drafting

of the POA and new Will.     The chancery judge declined to do so.

We see no error in her ruling.   As noted, although the judge found

Richard had unduly influenced his mother in obtaining the POA,

nevertheless, she found the document to be valid and enforceable

as he was acting to achieve his mother's wishes.   Richard did not

strip the estate of any assets, and his actions did not rise to

the pernicious level envisioned in In re Estate of Folcher, 224

N.J. 496, 511 (2016), and Niles.

     As to the argument that plaintiffs are entitled to counsel

fees for the defense of the 2005 POA, we find it likewise to be

without merit. The 2005 POA was not the subject of the litigation.

Evelyn did not wish to remain in the assisted care facility; Dwight

would not listen to her wishes. Therefore, Evelyn desired a change

in the POA to Richard who was willing to accede to her desire to

move back to her home.     The court found Evelyn had the capacity

to communicate her decision for Richard to be her POA and to sign

                                 28                         A-0154-15T2
the legal document.      The 2011 POA was the crux of the case, not

the former document.

     The judge awarded $2500 in fees to both parties under Rule

4:86-4(e), authorizing compensation of counsel fees for the party

seeking   guardianship.      Both     Dwight   and   Richard   sought     the

guardianship of their mother.         In assessing fees to both sides,

the judge remarked that "this was not really about the guardianship

. . . . Rather, this was straight-out a fight between brothers.

. . . [Evelyn] should certainly not have to fund the sole source

of stress in her life."     We see no reason to disturb the judge's

ruling.

     In addressing the cross-appeal, we reiterate the premise of

the American rule governing this fee consideration.                We reject

defendant's   argument    that   a   contractual     entitlement    to   fees

existed under the 2011 POA.          Although the document contained a

clause that the agent in the POA had the authority to sue and

settle suits, it did not reference counsel fees.               There is no

pertinent exception to the American rule for the award of further

fees to defendant.

     The June 30, 2015 orders are affirmed with the exception of

the court's ruling pertaining to the TOD account. In accordance

with the above discussion, we reverse the portion of the order



                                     29                              A-0154-15T2
that re-designated the beneficiary of the account and restore

Dwight Worley as the account beneficiary.

    Affirmed in part, reversed in part.




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