                       NOT FOR PUBLICATION WITHOUT THE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-0098-16T2

IN THE MATTER OF THE ESTATE
OF MILDRED SUESSER, deceased.
_____________________________

             Submitted October 18, 2017 – Decided November 29, 2017

             Before Judges Currier and Geiger.

             On appeal from Superior Court of New Jersey,
             Chancery Division, Hudson County, Docket No.
             311916.

             Mariniello & Mariniello, PC, attorneys for
             appellants Linda Bickhardt and Anna Sheftall
             (Joseph R. Mariniello, on the brief).

             Levine DeSantis, LLC, attorneys for respondent
             Sandra Pine (Steven D. Grossman and Peter
             Nichols, on the brief).

PER CURIAM

       Linda Bickhardt and Anna Sheftall appeal from that portion

of a July 29, 2016 order declaring a July 22, 2013 deed to be

valid.1     Appellants contended the deed was fatally defective and

the product of undue influence.             Despite these contentions, the

trial court declared the deed valid.              After a careful review of



1
    The parties do not appeal the remaining aspects of the order.
the record and applicable principles of law, we vacate the trial

court's determination that the deed was valid and remand for

further proceedings.

                                 I.

     Following the death of her husband, decedent Mildred Suesser

was the fee simple owner of a condominium unit (the Apartment 2)

located in West New York, New Jersey. On January 5, 2012, decedent

executed a deed prepared by attorney Maria I. Lewie conveying her

ownership interest in the Apartment to herself and Sandra Pine as

tenants in common.     Approximately one and one-half years later,

Lewie prepared a "correction deed" (the 2013 Deed) for the purpose

of conveying the Apartment to decedent and Pine as joint tenants

with a right of survivorship.    Although the 2013 Deed would have

affected Pine's undivided one-half interest in the property, it

identified decedent as the sole grantor.        However, when it was

executed on July 22, 2013, it was signed by both decedent and

Sandra Pine. On the same day they executed the deed, both decedent

and Pine executed a seller's residency certification/exemption

form.   They also executed identical affidavits of consideration.

The seller's residency certification/exemption form listed both




2
  Because the parties refer to        the   condominium   unit   as   the
Apartment, we will do likewise.

                                 2                               A-0098-16T2
decedent and Pine as the sellers.         Similarly, the affidavit of

consideration signed by Pine identified her as a grantor.

     On January 28, 2016, Hudson County Protective Services filed

a guardianship application to adjudicate the mental capacity of

decedent, who they alleged was a vulnerable adult. The application

sought the appointment of a limited guardian to manage her affairs.

On March 7, 2016, letters of temporary guardianship pendente lite

were issued.      Unfortunately, decedent died on March 22, 2016,

during the pendency of that action.

     Decedent left a June 13, 2014 Will (the Will).             The Will

names Linda Bickhardt and Anna Sheftall as co-executors of the

estate.   The Will devises and bequeaths one-third of the residuary

estate    to   decedent's   niece,   Evelyn   Beauregard,   one-third    to

decedent's niece, Sandra Pine, and one-third to the United States

Holocaust Memorial Museum.

     The Will also contains an in terrorem clause, otherwise known

as a no-contest clause, which provides that if any beneficiary

contests the probate or validity of the Will, "then all benefits

provided for such beneficiary shall be revoked and such benefits

shall pass" to the remaining residuary beneficiaries in proportion

to their respective shares.




                                     3                            A-0098-16T2
      Beauregard served as decedent's caregiver for many years,

residing with her in the Apartment.       Beauregard continued to live

there after decedent's death.

      On March 29, 2016, Pine filed a caveat against the Will.             On

May 18, 2016, Pine filed a three-count verified complaint seeking

appointment of a temporary administrator (count one), a judgment

declaring the Deed valid, creating a joint tenancy with a right

of survivorship (count two), and removal of Beauregard from the

Apartment (count three).      On June 3, 2016, the court issued an

order to show cause why judgment should not be entered: (1)

appointing a temporary administrator for the Estate; (2) declaring

the Deed valid and enforceable; (3) declaring that upon decedent's

death on March 22, 2016, ownership of the Apartment transferred

by operation of law from decedent and Pine to Pine as the surviving

joint tenant; (4) declaring that Pine has sole individual title

to the Apartment; (5) granting Pine possession of the Apartment;

and   (6)   ordering   Beauregard   to   vacate   the   Apartment     unit.

Bickhardt and Sheftall filed an answer and counterclaim.                 The

answer did not assert undue influence as an affirmative defense.

      On May 27, 2016, Bickhardt and Sheftall filed a verified

complaint for probate of the Will in solemn form, appointing them

co-executors of the Estate, and setting aside the caveat filed by

Pine.   On June 3, 2016, the trial court issued an order to show

                                    4                               A-0098-16T2
cause why judgment should not be entered: (1) probating the Will

dated June 13, 2014; (2) issuing letters testamentary to Bickhardt

and Sheftall as co-executors; (3) setting aside the caveat filed

by Pine; and (4) in the alternative, appointing Bickhardt and

Sheftall as temporary co-administrators, to serve without bond.

Pine filed an answer and separate defenses on July 18, 2016.

     During         the        probate    proceeding,         appellants         filed

certifications       of    Sheftall,     Bickhardt,     Gary   M.     Lachman,      the

attorney who drafted the Will, and Alexander L. Locatelli, an

attorney who witnessed the execution of the Will.                     None of these

certifications addressed the issue of alleged undue influence

relating to the 2013 Deed.

     Both    orders       to    show   cause   stated   that    the    court     would

entertain argument, but not testimony, on the return date, unless

the parties were advised to the contrary before the hearing.                        The

parties were not advised prior to the hearing that the court would

hear testimony that day.

     Appellants relied, in part, on the pleadings and reports

filed   in    the     guardianship       action.        The    certification          of

psychologist Peter Economou, Ph.D, opined that decedent suffered

from "significant functional impairment and lack[ed] the cognitive

functioning to make decisions."                His findings were based on an

evaluation performed on January 6, 2016.                We note, however, that

                                          5                                    A-0098-16T2
decedent's Will, which appellants sought to probate, was executed

on June 13, 2014, more than ten months after the deed was executed.

Notably, while Pine is a beneficiary of the Will, appellants do

not allege that the Will was the product of undue influence.

     Appellants contend the correction deed came about after Pine,

not decedent, contacted Lewie and informed her that decedent, who

was by that time residing in an assisted living facility, wanted

to change title to the Apartment from tenants in common to joint

tenants with the right of survivorship.

     Pine filed two certifications authored by Lewie, the attorney

who drafted both deeds, in support of her claim that the 2013 deed

was valid.   In her certifications, Lewie described her actions and

encounters with decedent.     In particular, she related the facts

surrounding the preparation and execution of the 2013 Deed in

considerable chronological detail.

     The opposing orders to show cause were heard by the trial

court on July 29, 2016.     Appellants did not have the opportunity

to conduct any discovery.    When asked by the judge whether there

was an intent to take testimony, even if not that day, counsel for

Bickhardt and Sheftall answered, "there was not intent for me to

have testimony taken . . . ."     When later asked by the judge if

he intended to take testimony from the two witnesses who were in

the courtroom, counsel again answered in the negative.    The judge

                                  6                         A-0098-16T2
subsequently asked counsel, "you want me to decide the case based

on the papers and your arguments today, is that accurate[?]"

Counsel answered, "That's correct, that's what I'm seeking."

     Later during oral argument, however, counsel stated:          "I

don't think that issue can be settled at this point in time without

a factual plenary hearing." When confronted by the judge regarding

this statement in light of what he stated earlier, counsel stated:

               No, I – I'm telling you that I think your
          resolving today may be a determination that
          there is more information that you need
          regarding the deeds prior to you making a
          decision. That's all I'm saying to you, I'm
          not saying the Court can't decide.

               And the point of the matter is there's a
          legal question. Why didn't – if they were all
          there, why didn't Mrs. Pine and Ms. Susser
          simply sign as grantors and grantees, and then
          there would be no question that title could
          have been transferred.    You can't give what
          you don't have in real estate. In fact, you
          can't do that in life. But that's my argument
          here.

     Appellants contend on appeal that any indication to the trial

court that it could render a decision without hearing testimony

was limited to their affirmative claims.   They now argue that they

did not waive their right to discovery and a plenary hearing

regarding their claim that the 2013 deed was the product of undue

influence.




                                 7                          A-0098-16T2
       They further claim the submissions from the guardianship

action and the facts surrounding the preparation of the 2013 deed

established       a     confidential        relationship    and       suspicious

circumstances.        In that regard, their attorney stated:

              Your Honor, this – when [Mr. Grossman] says
              there's no evidence of undue influence, that
              bespeaks a[n] ignorance of the past file you
              had before you. There's no question that both
              [Beauregard] and Pine were in a position of
              il – influence, and were in a position of
              trustworthiness.

                   And ther[e]'s no question, according to
              Mr. Joya, that there was in some way a
              vulnerable adult who was pushed and pulled by
              both these parties.

       After hearing lengthy oral argument the judge took the matter

under advisement and issued a July 29, 2016 order.            The order: (1)

removed the caveat filed by Pine; (2) admitted the Will to probate;

(3) issued letters Testamentary to Bickhardt and Sheftall as co-

executors; (4) declared that no bond shall be required; (5) denied

appointment of a temporary administrator; and (6) declared the

2013   Deed    valid,    creating   a   joint    tenancy   with   a    right    of

survivorship.

       With regard to the conclusion that the deed was valid, the

trial court found that

              the Deed is facially valid pursuant to the
              statutory requirements of N.J.S.A. 46:4-1 et
              seq., and that the intention of the parties
              appears clear from the face of the Deed, see

                                        8                                A-0098-16T2
          Boylan v. Borough of Point Pleasant Beach, 410
          N.J. Super. 564, 569 (App. Div. 2009), and
          finally,    that   the   extrinsic    evidence
          surrounding the Deed resolves any and all
          ambiguities as to the intent of the parties,
          see [i]bid. . . .

This appeal followed.

     On September 22, 2016, the judge issued a supplemental written

opinion setting forth her findings of fact and legal analysis.

With regard to her ruling that the 2013 Deed was valid, the judge

stated:

          The requirements for a short form deed are
          enumerated in N.J.S.A. 46:4-1 et seq.      The
          2013 Deed meet those requirements. However,
          the Deed contains an error, because both
          Decedent and []Pine should have been listed
          as grantors.      After the 2012 Deed was
          executed, Decedent and [] Pine owned the
          Apartment as tenants in common. Therefore,
          Decedent alone could not have conveyed a joint
          tenancy with a right of survivorship to
          herself and [] Pine.

          In determining the meaning of a deed, the
          prime consideration is the intent of the
          parties.   See e.g., Normanoch Association,
          Inc. v. Baldasanno, 40 N.J. 113, 125 (1963);
          Hagaman v. Board of Ed., 117 N.J. Super, 446,
          451 (App. Div. 1971). Courts must examine the
          language of the deed as a whole, including
          surrounding circumstances, when determining
          the intent of the parties.         Hammett v.
          Rosensohn, 26 N.J. 415, 423 (1958); Boylan v.
          Borough of Pt. Pleasant Beach, 410 N.J. Super.
          564, 569 (App. Div. 2009).

          This Court finds that the Deed is facially
          valid pursuant to the statutory requirements
          of N.J.S.A. 46:4-1 et seq., and that the

                                9                           A-0098-16T2
           intention of the parties appears clear from
           the face of the Deed, see Boylan v. Borough
           of Point Pleasant Beach, 410 N.J. Super., 564,
           569 (App. Div. 2009), and finally, that the
           extrinsic evidence surrounding the Deed
           resolves any and all ambiguities as to the
           intent of the parties, see Ibid.. The weight
           of the evidence suggests that Decedent and []
           Pine intended to create a joint tenancy with
           right of survivorship in the Apartment. The
           language on the face of the Deed and the
           supporting documents suggest that this was the
           desired tenancy. Further, the Certification
           of [] Lewie, the scrivener of the Deed, avers
           that this was Decedent's intention and she
           fully comprehended the legal ramifications of
           such a Deed (that title to the Apartment would
           pass to [] Pine upon Decedent's death by
           operation of law).

           Accordingly, the Court finds that that 2013
           Deed was valid to create a joint tenancy with
           right of survivorship to Decedent and [] Pine.
           As such, the Apartment now belongs fully to
           [] Pine.

    Appellants raise the following issues on appeal: (1) the

trial court erred in finding the 2013 deed valid making Pine the

sole owner of the Apartment; and (2) the trial court erred by

failing   to   conduct   a   plenary    hearing   on   the   issue   of   undue

influence.

                                       II.

    We normally defer to the factual findings of a trial judge.

           The scope of an appellate court's review of a
           trial court's fact-finding is a limited one.
           Trial court findings are ordinarily not
           disturbed   unless   "they  are   so   wholly
           unsupportable as to result in a denial of

                                       10                             A-0098-16T2
           justice," and are upheld wherever they are
           "supported by adequate, substantial and
           credible evidence."

           [Meshinsky v. Nichols Yacht Sales, Inc., 110
           N.J. 464, 475 (1988) (quoting Rova Farms
           Resort v. Investors Ins. Co., 65 N.J. 474,
           483-84 (1974)).]

See also In re Trust Created by Agreement Dated Dec. 20, 1961, ex
rel. Johnson, 194 N.J. 276, 284 (2008).

     "A trial court'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). "On appeal, a trial judge's statutory

interpretation is reviewed de novo."        In re Estate of Fisher, 443

N.J. Super. 180, 190 (App. Div. 2015) (citation omitted), certif.

denied, 224 N.J. 528 (2016).

                                   III.

     We first address appellants' claim that the trial court erred

by deciding this matter without conducting a plenary hearing.

Appellants correctly point out that both orders to show cause

stated   that   "[t]he   [c]ourt   will   entertain   argument,   but   not

testimony, on the return date of the Order to Show Cause, unless

the [c]ourt and parties are advised to the contrary before the

return date."    The parties were not advised before the return date

that the court would entertain testimony.



                                    11                             A-0098-16T2
     Appellants contend that the colloquy with the court regarding

whether there was an intent to take testimony related only to

appellants' claims to probate the Will, issue letters testamentary

to them, and set aside the caveat filed by Pine.

     While counsel seemingly agreed that the trial court could

decide the legal issue of the validity of the 2013 Deed without

taking testimony, appellants argue that counsel's statement was

not a waiver of the right to a plenary hearing with regard to the

issue of undue influence.      They point out that counsel later

advised the court:   "I don't think that issue can be settled at

this point in time without a factual plenary hearing."

     Given the language in the orders to show cause and what may

have been no more than innocent miscommunication, we decline to

hold that appellants waived the right to conduct discovery or a

plenary hearing on the issue of undue influence.

     We next address appellant's claim that the 2013 Deed was the

product of undue influence by Pine.       Pine argues there is no

evidence of undue influence.    Appellants claim the circumstances

under which the 2013 Deed was drafted raise questions as to whose

intent was really reflected in the deed, decedent's or Pine's.

     Appellants maintain there are significant factual issues

regarding whether decedent was the victim of undue influence,

obligating the court to hear oral testimony and consider other

                                12                         A-0098-16T2
evidence, rather than deciding the issue exclusively on the written

submissions.   They point to the confidential relationship between

decedent and Pine, who was her niece.      They also emphasize the

fact that Lewie represented both decedent and Pine with regard to

the 2013 Deed transaction.    Based on the confidential relationship

and the alleged suspicious circumstances, appellants contend that

they satisfied their burden of proof which Pine failed to rebut.

     The law of undue influence is well settled.        A decedent’s

bequest may be overturned if it is proven to be the product of

undue influence.   Haynes v. First Nat'l State Bank, 87 N.J. 163,

176 (1981).    “Undue influence” has been defined as a "mental,

moral or physical exertion" that destroys the "free agency of a

testator by preventing the testator from following the dictates

of his own mind and will and accepting instead the domination and

influence of another."    Ibid. (citations omitted).   However, "not

all influence is 'undue' influence."     In re Livingston's Will, 5

N.J. 65, 73 (1950).

     The first element necessary to raise a presumption of undue

influence is a “confidential relationship” between the decedent

and the beneficiary.     Haynes, supra, 87 N.J. at 176.   The second

element necessary to raise a presumption of undue influence is the

presence of “suspicious circumstances.”    Ibid.   When both elements

are present, a presumption of undue influence arises, shifting the

                                 13                           A-0098-16T2
burden of proof to the proponent of the instrument, who must,

under     normal    circumstances,        overcome      the    presumption           by    a

preponderance of the evidence.            Id. at 177-78 (citations omitted).

     “In respect of an inter vivos gift, a presumption of undue

influence    arises       when    the    contestant     proves       that    the     donee

dominated    the     will    of    the     donor,     or     when    a    confidential

relationship       exists   between      donor    and      donee[.]"        Pascale       v.

Pascale, 113 N.J. 20, 30 (1988) (citations omitted).

     A confidential relationship has also been described as one

where "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) (citation omitted).

     In    order    to    raise    a    presumption     of    undue       influence,       a

confidential relationship and suspicious circumstances must be

present, but the suspicious circumstances need only be "slight."

In re Estate of Stockdale, 196 N.J. 275, 303 (2008); Haynes, supra,

87 N.J. at 176.       Once the presumption of undue influence arises,

“both the burden of proof . . . and the burden of going forward

with proof, shift to proponent and are identical and coincident."



                                          14                                       A-0098-16T2
In re Week’s Estate, 29 N.J. Super. 533, 539 (App. Div. 1954);

accord, Haynes, supra, 87 N.J. at 177-79.

       Evidence of undue influence varies from case to case, with

the relationship of the parties being a significant factor.                       See,

e.g., Albright v. Burns, 206 N.J. Super. 625, 635 (App. Div. 1986)

(describing how, based on a nephew and uncle's relationship, a

confidential relationship may be presumed).                  Here, Pine was the

decedent's niece.        A fiduciary relationship may arise between aunt

and niece by reason of their closeness, family relationship, or

entrustment.        See ibid.

       Appellants' argument on the return date of the order to show

cause regarding the issue of undue influence was minimal.                         They

contend, however, that the record before the trial court, which

included the guardianship pleadings and reports, was sufficient

to demonstrate the confidential relationship between decedent and

her niece, as well as suspicious circumstances surrounding the

preparation and execution of the 2013 Deed.

       We fully recognize that the court might have thought that

appellants did not seek to undertake discovery, submit briefing,

or   produce       testimony    on   the   issue    of    undue   influence     given

counsel's comments during oral argument.                  However, we decline to

deprive litigants of their day in court based on what seems to

have   been    a    misunderstanding       caused    by    counsel's   failure       to

                                           15                                 A-0098-16T2
effectively communicate their request for discovery and a plenary

hearing.

     In her supplemental opinion, the judge recounts the opposing

contentions of the parties regarding whether the 2013 Deed was the

product of undue influence.       However, the order and supplemental

opinion do not reflect whether the judge made an independent

decision   based   upon    an   analysis    of   those    contentions,    the

underlying facts, and the applicable law.         Moreover, we are unable

to determine whether the judge correctly declared the 2013 Deed

valid because the judge failed to make any findings of fact

supporting her determination or otherwise sufficiently expressing

her reasoning as to whether the deed was the product of undue

influence.   In that regard, the judge did not indicate whether she

concluded that appellants failed to adequately plead, prosecute,

or prove their claim of undue influence.                 Nor did the judge

indicate   whether   a    confidential     relationship     and   suspicious

circumstances existed.      Consequently, she also did not indicate

whether the burden of proof shifted.

     We cannot determine on this record whether the undue influence

claim was even considered, let alone whether it was denied for

procedural or substantive reasons.         We are, therefore, constrained

to vacate the portion of the order declaring the 2013 Deed valid

and remand for further proceedings consistent with this opinion.

                                    16                               A-0098-16T2
    In light of our ruling, we need not reach the issue whether

the 2013 Deed was invalid because it did not identify Pine as a

grantor.   Even if otherwise legally sufficient, the deed is not

valid if it was the product of undue influence.

    On remand the trial court is directed to conduct a case

management conference within thirty days to address any need for

additional discovery and a testimonial hearing.     The judge will

make the subsequent determination whether the 2013 Deed was the

product of undue influence.

    Vacated and remanded.     We do not retain jurisdiction.




                                17                             A-0098-16T2
