                     NOT FOR PUBLICATION WITHOUT THE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-1510-15T3

IN THE MATTER OF THE
ESTATE OF HAROLD
BECKER, deceased.
———————————————————————————

           Argued December 15, 2016 – Decided             February 27, 2017

           Before Judges Lihotz and Hoffman.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Probate Part, Atlantic
           County, Docket No. 116042.

           Richard F. Klineburger, III, argued the cause
           for   appellant   Estate   of   Scott   Becker
           (Klineburger    &  Nussey,    attorneys;   Mr.
           Klineburger and Carolyn G. Labin, on the
           briefs).

           John J. Palitto, Jr., argued the cause for
           respondent Lynda Becker Kelly (Price & Price,
           LLC, attorneys; Mr. Palitto, on the brief).

           Brandon Becker, respondent pro se, join in the
           brief of respondent Lynda Becker Kelly.

           Respondent     Stuart    Becker    has   not    filed   a
           brief.

PER CURIAM
     Defendant Estate of Scott Becker1 appeals from an October 28,

2015 Probate Part order denying defendant's motion for a new trial.

Prior to this motion, on July 29, 2015, the Probate Part entered

an order in favor of plaintiff Lynda Becker Kelly, the ex-wife of

Harold Becker (the testator), admitting to probate a copy of his

March 6, 2012 will.     For the reasons that follow, we affirm the

denial of defendant's motion for a new trial.

                                 I.

     We discern the following facts and procedural history from

the record on appeal.    Plaintiff and the testator married in 1983

and divorced in 2000.     They reconciled in 2005, living together

unmarried until the testator's death in 2013.

     On March 6, 2012, the testator executed a will prepared by

his longtime attorney, Mark Roddy.    The testator named plaintiff

as his executor and further provided, "I hereby bequeath my one-

half interest in my former home2 to my youngest son, [Brandon,]"

along with "[a]ny mon[ies], property, or items not here and above




1
    On October 24, 2016, we entered an order changing appellant
from Scott Becker to the Estate of Scott Becker.      For ease of
reference, we refer to both Scott Becker and his estate as
"defendant," and we refer to the testator's other two sons, Stuart
Becker and Brandon Becker, by their first names.
2
   The home was a townhouse in Philadelphia. The testator's first
wife, Frances, owned the other one-half interest.
                            2                             A-1510-15T3
described[.]"      The testator signed the will in the presence of

Roddy, two attesting witnesses, and a notary public.

      On August 21, 2013, the testator sustained serious injuries

in a car accident; one month later, he succumbed to his injuries,

passing away at the age of seventy.        His surviving heirs at law

were his three sons: Stuart, Scott, and Brandon.         Stuart and Scott

are his sons by his first wife, while Brandon is his son by

plaintiff.

      Brandon has a history of incarcerations stemming from his

long-term use of illegal drugs. At the time of his father's death,

Brandon had been incarcerated since April 2012.

      On May 29, 2014, plaintiff filed a verified complaint seeking

to probate a copy of the March 2012 will.       Plaintiff certified the

testator was the only individual with knowledge of the location

of the original will, and she was unable to produce the original

document.

      Stuart and Scott Becker filed a joint answer to the complaint

on   July   18,   2014.   Along   with   the   answer,   Stuart   filed   a

verification denying "the existence of any will," and stating, "It

is my understanding that my father had destroyed any will prior

to his death because he wanted all of his children to share equally

in any Estate that he would leave."       Stuart further asserted his

father was not of sound mind and body when he may have considered

                              3                                   A-1510-15T3
composing   a   will,    claiming    "undue      influence    by   [plaintiff],

especially at times during the on-going intoxication of my deceased

father."    According      to   Stuart,    his    father     was   "addicted   to

narcotics for the vast majority of his adult life."                 Stuart also

asserted he and Scott were not estranged from their father, and

argued, "It makes no sense to exclude his two sons and to award

our family home to another person."         Defendant later abandoned the

undue influence claim.

     Judge Raymond Batten conducted a trial on July 21 and 29,

2015, hearing testimony from Roddy, plaintiff, Brandon, and Scott.

Roddy testified to a long history with the testator, serving as

his personal attorney since the 1980s.              According to Roddy, on

August 3, 2011, the testator came to his office to discuss his

will.   Roddy drafted the will, which the testator later signed at

Roddy's office on March 6, 2012.          On March 9, 2012, Roddy sent the

testator the original will and a copy and retained a photocopy for

his own records.        Roddy stated he believed the testator had the

capacity to execute the will, and said he would not have initiated

the process if the testator lacked this capacity.

     Roddy further testified to the contents of the will, stating

Brandon was the sole beneficiary of the estate.              Roddy said he had

"detailed discussions" with the testator, and "it was his position

that Brandon would never be able to hold and keep a real job once

                                 4                                      A-1510-15T3
he got out of jail, and all of his other relatives were well

capable of taking care of themselves.                For that reason . . . he

made him the beneficiary."

     Plaintiff testified the testator showed her the will upon

receiving it from Roddy by mail.                He told her he was leaving

everything    to   Brandon   because          she   could    care   for   herself.

Plaintiff further testified she saw the testator mail the original

will to Brandon's prison address, noting, "I knew where it was."

Plaintiff said the testator mailed the will to Brandon on the same

day he received it from Roddy, placing the mailing date in March

2012.

     Brandon testified, however, that he was not yet in prison in

March 2012.    Instead, he stated he received the original will, a

letter, and a copy of the will from his father in October 2012

while he was in prison.      He then modified his statement and said

he only received the original will and made a copy of it himself.

Brandon stated his father visited him at prison "every weekend"

in 2012, and he also visited him in jail after sending him the

will.

     According     to   Brandon,       nine   days   after    his   father's    car

accident, he received an institutional charge and was placed in

administrative detention.      He was then transferred to a different

prison facility on September 19, the day before his father died.

                                   5                                       A-1510-15T3
Brandon said the authorities at the new facility "tear things up,"

prompting him to mail the original will to his childhood friend

A.J.,3 approximately two weeks after arriving at the new facility.

     Brandon said A.J. sent him two letters after he mailed her

the will – one letter stated she received the package, and another

promised to keep the will safe and inform Brandon of her new

address.       However,   Brandon   testified   he   wrote   "multiple"

additional letters to A.J. requesting she mail the will back to

him or his mother.    Brandon said he sent letters to both A.J. and

her sister, but he did not receive responses. He also had a friend

travel to A.J.'s house, which appeared vacant.          At the second

trial date, Brandon stated after he lost contact with A.J.,

approximately one year prior to trial, he received a letter from

A.J.'s sister, who was also incarcerated, promising to keep the

will safe. He said he lost contact with her after she was released

from prison.

     Scott testified that in 2012, his father told him he was

planning his will and he wanted to leave his share of Scott's

mother's home to Brandon.     Scott objected strongly to this plan.

His father later told Scott he completed the will.      However, Scott

testified he had a subsequent conversation with his father, who

told him the will was "gone," and he "wiped [his] ass with it."


3
    We use initials to protect the privacy of this witness.
                            6                             A-1510-15T3
     At the conclusion of testimony on July 29, 2015, Judge Batten

rendered an oral decision.   In delivering his opinion, the judge

reviewed the testimony of the witnesses. The judge found, although

the testimony of Brandon and plaintiff differed as to when the

testator mailed the will, the testator relinquished his possession

in either scenario.

     Judge Batten further observed that neither Scott nor Stuart

"did anything suggestive of respective assertions of entitlement

to administration" between the testator's death and filing their

answer to plaintiff's complaint.     This "silence both in deed and

word" the judge found "probative."

     Regarding the will itself, Judge Batten found "the content

of this will is consistent . . . with the testamentary intent

provided by [the testator] clearly to Mr. Roddy."     Specifically,

Judge Batten found the testator intended to leave his full estate

to Brandon because he was incapable of caring for himself.

     Last, Judge Batten found the "presumption of revocation" did

not apply to the facts at trial because the testator surrendered

his possession and access to the will upon mailing it to Brandon.

From the record, the judge found no basis to conclude the testator

destroyed the will or performed a revocatory act.

     The judge then ruled:

          [O]n [these] findings of fact, substantially
          uncontroverted . . . I am satisfied that [the
                            7                               A-1510-15T3
            will] constitutes a true and accurate copy of
            the last will and testament of [the testator],
            that it was lost, that it has not been revoked,
            and that it is therefore properly submitted
            for probate . . . .

Judge Batten then entered the order admitting a copy of the will

to probate; the order also appointed plaintiff to administer the

estate.

     On August 17, 2015, defendant filed a motion for a new trial

accompanied    by     a    brief     and     a    supporting     certification         by

defendant's attorney.         In the certification, the attorney stated

after the judge announced his decision, he hired an investigator

"to ascertain the accuracy of testimony given at trial."                             The

attorney     alleged        the     investigator         discovered       "material"

information    that       "directly    conflict[ed]"           with   certain     trial

testimony. He claimed he could not have procured this new evidence

during discovery because the investigation concerned "facts to

which parties testified at trial."

     On    October    16,    2015,    Judge       Mark   Sandson,     replacing      the

recently    retired       Judge    Batten,       heard   and    denied   defendant's

motion.    Judge Sandson found defendant failed to "indicate why

this information was newly discovered," noting defendant chose to

forgo deposing either plaintiff or Brandon during discovery.                         The

judge then concluded:

            [P]laintiffs proved to the satisfaction of
            Judge Batten that Brandon Becker had the
                             8                                                  A-1510-15T3
            original will, forwarded it to an acquaintance
            who cannot be located, and as such the
            original will was lost.     The result of the
            trial was not a miscarriage of justice as
            needed under the rule, but rather the [c]ourt,
            insuring the wishes and intent of the testator
            to be followed[.] I cannot grant the motion
            of the defendants for a new trial.

Judge Sandson formalized his decision in an order dated October

28, 2015.     This appeal followed.

                                       II.

      On appeal, defendant argues a new trial is warranted because

(1)   the   trial    court    should   have    applied     the   presumption    of

revocation,    and    (2)    plaintiff       failed   to   provide    clear    and

convincing evidence to overcome this presumption.                 Defendant also

argues Judge Sandson should have granted a new trial or, "at a

minimum," taken limited testimony on evidence allegedly refuting

Brandon's claims about the location of the original will.                       We

disagree.

      "On a motion for a new trial in an action tried without a

jury, the trial judge may open the judgment if one has been

entered, take additional testimony, amend findings of fact and

conclusions of law or make new findings and conclusions, and direct

the entry of a new judgment."            R. 4:49-1(a).           The trial court

should not grant a new trial unless "it clearly appears that there

was a miscarriage of justice under the law."               Dolson v. Anastasia,

55 N.J. 2, 7 (1969).         A "miscarriage of justice"
                                   9                                     A-1510-15T3
              has been described as a "'pervading sense of
              "wrongness" . . . [which] can arise . . . from
              manifest lack of inherently credible evidence
              to support the finding, obvious overlooking
              or undervaluation of crucial evidence, [or] a
              clearly unjust result. . . .'"

              [Risko v. Thompson Muller Auto. Grp., Inc.,
              206 N.J. 506, 521 (2011) (alterations in
              original) (quoting Lindenmuth v. Holden, 296
              N.J. Super. 42, 48 (App. Div. 1996), certif.
              denied, 149 N.J. 34 (1997)).]

      On   appellate       review,    we    apply    essentially     the    same

"miscarriage of justice" standard as the trial court.                  Hill v.

N.J. Dep't of Corr. Comm'r Fauver, 342 N.J. Super. 273, 302 (App.

Div. 2001), certif. denied, 171 N.J. 338 (2002); R. 2:10-1.                   We

must provide "'due deference' to the trial court's 'feel of the

case,' with regard to the assessment of intangibles, such as

witness credibility."        Jastram v. Kruse, 197 N.J. 216, 230 (2008)

(quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).

However, "a trial court's determination is 'not entitled to any

special deference where it rests upon a determination as to worth,

plausibility,      consistency       or    other    tangible   considerations

apparent from the face of the record with respect to which he is

no more peculiarly situated to decide than the appellate court.'"

Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Dolson,

supra, 55 N.J. at 7).

      In the event a decedent's original will cannot be located,

the   party    asserting    the   existence    of    the   missing   will   must
                                   10                                  A-1510-15T3
demonstrate their claim with "clearness and certainty."       In re

Willitt's Estate, 46 A. 519, 527 (Prerog. Ct. 1900). The proponent

of the lost will must establish the intent of the document "by

clear and convincing evidence."   Pivnick v. Beck, 326 N.J. Super.

474, 483-84 (App. Div. 1999), aff'd o.b., 165 N.J. 670 (2000).

"This clear and convincing evidence must be shown with reference

to the execution of the alleged lost will, the contents of said

will, and the circumstances under which the will was lost, stolen,

or destroyed."   In re Will of Roman, 80 N.J. Super. 481, 483 (Cty.

Ct. 1963).

     Under certain circumstances, when a missing will cannot be

located upon the testator's death, a rebuttable presumption arises

that the testator destroyed the will with the intent to revoke it.

Our former Court of Errors and Appeals described the presumption

as follows:

          The law of this state applicable to the
          establishment of lost wills is well defined.
          If such a will was last seen in the custody
          of the testatrix or she had access to it the
          fact that it cannot be found after her death
          raises the presumption that she destroyed it
          animo revocandi.     This presumption may be
          rebutted but in order so to do the evidence
          must be clear, satisfactory and convincing and
          the burden is on the proponents. The proof
          necessary   to   rebut   the  presumption   of
          revocation must be sufficient to exclude every
          possibility of a destruction of the will by
          the testatrix herself.


                             11                             A-1510-15T3
           [In re Will of Davis, 127 N.J. Eq. 55, 57 (E.
           & A. 1940) (quoting In re Will of Bryan, 125
           N.J. Eq. 471 [(E. & A. 1939)]).]

See also In re Estate of Jensen, 141 N.J. Eq. 222, 225 (Prerog.

Ct. 1947) (stating proof offered to rebut the presumption "must

be sufficient to exclude every possibility of a destruction of the

will by the [testator]"), aff'd, 142 N.J. Eq. 242 (E. & A. 1948);

In re Will of Calef, 109 N.J. Eq. 181, 184 (Prerog. Ct. 1931),

aff'd o.b., 111 N.J. Eq. 355 (E. & A. 1932), cert. denied sub

nom., Neely v. Stacy, 288 U.S. 606, 53 S. Ct. 397, 77 L. Ed. 981

(1933); In re Estate of Ehrlich, 427 N.J. Super. 64, 75-76 (App.

Div.   2012)   (noting   proof    must   be   "clear   satisfactory,    and

convincing to rebut the presumption of the original's revocation

or destruction" (citations omitted)), certif. denied, 213 N.J. 46

(2013).

       If a will is shown to be out of the testator's possession,

the party asserting revocation "must show that it came again into

his custody, or was actually destroyed by his direction."              Will

of Calef, supra, 109 N.J. Eq. at 185 (citations omitted). However,

this standard is "qualified by the rule of access, or opportunity

of repossession, and possibility, not probability, of such access

is controlling."    Ibid. (citations omitted).         This rule "does not

require an actual tracing of the will back into the possession of

the testatrix, but is satisfied by a showing of access, that is,

                                 12                                A-1510-15T3
opportunity of repossession, and upon such showing the presumption

of revocation remains until rebutted by evidence which is clear,

convincing and satisfactory."     Id. at 186 (emphasis in original).

     In this case, Judge Batten found the presumption of revocation

did not apply because the testator surrendered his possession and

access to the will.    The judge stated:

          At whichever date [the testator mailed the
          will to Brandon] . . . [the testator] did not
          enjoy possession and did not enjoy access to
          the original will himself. That the will may
          have been in . . . the prison cell of Brandon
          Becker on the occasion of some visit by [the
          testator] proves nothing more than that. It
          is not affirmative proof that [the testator]
          somehow had access to a will [or] that he
          . . . even knew [it] was in Brandon Becker's
          cell. . . .

     Defendant argues, because the testator had the possibility

of access to the will through his visits with Brandon in prison,

the presumption of revocation applies.      Defendant relies on Will

of Calef, where the court applied the presumption because the

testatrix knew where the will was, and although she did not have

custody of it, she "could, if she so desired, have obtained

possession of it and destroyed it."        Will of Calef, supra, 109

N.J. Eq. at 199.      Defendant further argues the presumption of

revocation "remained in place" because Brandon was the chief

beneficiary of the will, allegedly possessed it when the testator



                             13                              A-1510-15T3
died, and had a strong interest in admitting it to probate.       See

id. at 186.

     Given our deferential standard of review, we reject these

arguments.     Judge Batten heard the trial testimony and concluded

there was insufficient evidence showing the testator had access

to the will or even knew of its location in Brandon's cell.    Judge

Sandson then reviewed this decision and found no miscarriage of

justice warranting a new trial.     We concur.   Further, our review

of the record convinces us that it fully supports Judge Batten's

conclusions.     Although the testator allegedly visited Brandon in

prison, there was no indication he could have obtained the will

if he so desired.    While Brandon's status as the chief beneficiary

means "less evidence of access is necessary to sustain"           the

presumption of revocation, Will of Calef, supra, 109 N.J. Eq. at

186, here, there was still insufficient evidence of access.    There

was no evidence the will document was present during any visit

between Brandon and the testator.      We find no basis to disturb

Judge Batten's finding that the presumption of revocation does not

apply.   As such, defendant's additional claim that Judge Batten

improperly placed the burden of proof on Scott and Stuart lacks

merit.

     Defendant also argues Scott's testimony – that the testator

said the will was "gone" – proved the testator destroyed the will

                              14                             A-1510-15T3
with the intent to revoke it.               However, Judge Batten directly

addressed     this   testimony   in    his    oral     decision,      finding      the

testator's     alleged   statement      was    "as     likely    a    comment        of

appeasement     as   opposed     to    an    accurate     memorialization            of

affirmative and knowing destruction of the original will."                           We

defer to Judge Batten's assessment of the witnesses at trial.

Jastram, supra, 197 N.J. at 230.

     Next, defendant argues plaintiff "failed to present clear and

convincing proof to overcome the presumption of revocation in this

matter."       Defendant   contends         plaintiff    offered          conflicting

explanations regarding the location of the will; indeed, plaintiff

first certified in her complaint that only the testator knew the

location of the will, but she later testified she witnessed the

testator mail it to Brandon.           Defendant further highlights other

facts   and    instances   of    conflicting         testimony       to     challenge

plaintiff and Brandon's credibility.            Defendant contends that in

light of these credibility issues, Judge's Batten's decision to

probate the will constitutes a miscarriage of justice.

     This argument also lacks merit.             As noted, the main thrust

of   defendant's     argument    fails       because     the    presumption          of

revocation does not apply.        Moreover, assuming arguendo that all

of defendant's credibility challenges are correct, we still find

the result does not constitute a miscarriage of justice.                          Most

                                  15                                          A-1510-15T3
persuasive is Roddy's testimony regarding the testator's clear

intention to leave his entire estate to Brandon.                 We agree with

Judge Sandson's assessment that Judge Batten "insur[ed] the wishes

and intent of the testator."       Therefore, we find no basis to order

a new trial.

      Last, defendant argues Judge Sandson erred by denying his

motion for a new trial due to newly discovered evidence. Defendant

contends that prior to trial he relied on plaintiff's complaint,

which stated only the testator knew the location of the original

will.      Based on this information, defendant claims he had "no

reason to think" plaintiff and Brandon would testify that Brandon

received the will in prison and then sent it A.J or her sister.

Therefore, defendant argues the trial court should have granted a

new   trial   or    taken   limited     testimony   based   on    the   private

investigator's new information regarding A.J., which would have

changed the result in this matter.

      We   reject   this    argument.      The   new   evidence    offered     by

defendant consists of A.J and her sister's criminal histories and

an interview between A.J. and the investigator, during which A.J.

allegedly denied receiving the will from Brandon. Defendant claims

this "determinative" information proves Brandon perjured himself

during trial and contradicts Judge Batten's finding that the

testator did not destroy his will.           The new evidence offered by

                                 16                                     A-1510-15T3
defendant comes too late to merit consideration in this case.         The

alleged information represents additional facts and circumstances

that were ascertainable before trial through discovery.           Having

made the strategic decision to forego discovery, defendant has no

basis for requesting "a second bite of the apple" by virtue of a

new trial.    State v. Bianco, 391 N.J. Super. 509, 517 (App. Div.),

certif. denied, 192 N.J. 74 (2007).

     Moreover, Roddy's testimony clearly confirmed the testator's

intent   to   bequeath   his   estate   to   Brandon.   Judge   Batten's

conclusion honored the testator's intent.         Therefore, we find no

miscarriage of justice to warrant a new trial.

     Affirmed.




                                17                               A-1510-15T3
