                     NOT FOR PUBLICATION WITHOUT THE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-0250-15T4


IN THE MATTER OF THE
ESTATE OF CHARLES W.
WINTER, JR., DECEASED.
_______________________

           Argued May 17, 2017 – Decided September 27, 2017

           Before Judges Fuentes, Simonelli and Carroll.

           On appeal from the Superior Court of New
           Jersey, Chancery Division, Morris County,
           Docket No. P-1610-2013.

           Gabriel H. Halpern argued the cause for
           appellant Michelle DiPaolo (PinilisHalpern,
           LLP, attorneys; Mr. Halpern, of counsel and
           on the briefs).

           Lauren Wachtler (Mitchell Silberberg & Knupp
           LLP) of the New York bar, admitted pro hac
           vice, argued the cause for respondent Lorraine
           Belmont (Riker, Danzig, Scherer, Hyland &
           Perretti, LLP and Ms. Wachtler, attorneys;
           Khaled J. Klele, of counsel; Ms. Wachtler, of
           counsel and on the brief).

           Jeremy B. Stein argued the cause for
           respondent Mira Morrison (Hartmann Doherty
           Rosa Berman Bulbulia, LLC, attorneys; Mr.
           Stein, on the brief).

           Harvey H.      Gilbert argued the cause for
           respondent     Howard Steinberg (Mr. Gilbert,
           attorney, joins in the brief of respondent
           Lorraine Belmont).

PER CURIAM

     In this will contest, plaintiffs Michelle DiPaolo, Mary Beth

Daly, Angelo Giudice, JoAnn Giudice, Philip Giudice, and Domenick

Giudice (collectively plaintiffs), were cousins of the decedent,

Charles W. Winter, Jr., and were named as residuary beneficiaries

under his Last Will and Testament executed in 1999.            Defendant

Lorraine Belmont, Winter's cousin and residuary beneficiary under

his will, shared a close family and personal relationship with him

for more than sixty years until he died on June 13, 2013. Defendant

Mira Morrison was Winter's girlfriend of more than thirty years

until he died. Defendant Howard Steinberg was Winter's best friend

since childhood and the two men worked together for many years.1

     Winter executed a new will on February 7, 2013, which named

Belmont, Morrison, and their family members and Steinberg as sole

beneficiaries of his estate (the Will).          Plaintiffs sought to

invalidate the Will based on defendants' alleged undue influence

over Winter.   Plaintiffs appeal from two July 31, 2015 Chancery

Division   orders,   granting   summary   judgment   to   defendants   and

dismissing the complaint with prejudice, and denying plaintiffs'



1
  We shall sometimes collectively refer to Belmont, Morrison, and
Steinberg as defendants.

                                   2                             A-0250-15T4
motion for leave to file an amended complaint to add additional

claims.     For the following reasons, we affirm both orders.

                                         I.

     This    Chancery    case    began       in   December     2013.     There   was

extensive discovery over an eighteen-month period, which included

numerous depositions, answers to interrogatories, and document

production.     We derive the following facts from that discovery as

well as certifications and admissions in plaintiffs' response to

Belmont's statement of facts.

     Winter never married and had no children.                         In 1999, he

executed a will designating his parents as beneficiaries of his

estate    and   his   thirteen    cousins         as    residuary   beneficiaries,

including plaintiffs, Belmont, and Belmont's sister, JoAnn Belmont

(JoAnn B.).      Winter's parents died, leaving his cousins as the

residuary beneficiaries under his will.                   After Winter's parents

died, he discussed changing his will with his long-time friend and

attorney, John J. Delaney, Jr., Esq.                   However, he did not change

his will at that time.

     In December 2012, Winter, then sixty-five years old, was

hospitalized for what he believed was pneumonia.                    Defendants and

JoAnn B. visited him in the hospital.

     In    January    2013,     Winter   learned         his   condition   was   not

pneumonia, but rather terminal stage four lung cancer.                      He was

                                         3                                  A-0250-15T4
hospitalized periodically throughout the beginning of 2013, and

defendants visited him in the hospital and helped him with his

medical, personal, and financial needs.     Plaintiffs never visited

Winter in the hospital or assisted him in any way.     They visited

him only once in March 2013, at his home.

     Winter was seriously ill and hospitalized on February 3,

2013.   Defendants and JoAnn B. were present when Winter and

Morrison called Delaney and asked him to come to the hospital to

prepare a new will for Winter.    Delaney was deposed and submitted

a certification.    He testified that he spoke directly with Winter

on the telephone.   Except for plaintiffs' self-serving assertions,

there is no evidence supporting their statement in their merits

brief that "[Morrison] was in a panic to call the lawyer" on

February 3, 2013.     In addition, plaintiffs do not support by

reference to the record their statement that "as [Winter] appeared

to be close to death, it was [Morrison] who started the mantra

'call the lawyer, call the lawyer.'"     See R. 2:6-2(2)(5).    To the

contrary, when asked at his deposition whether he saw anyone

suggest to Winter that he call Delaney, Steinberg testified: "No.

[Winter] was in control.     [Winter] was -- you know, you had to

know [Winter.   Winter] was the boss.    [Winter] wanted things done

the way he wanted them done.          It was his decision [to call

Delaney]."

                                  4                            A-0250-15T4
     Delaney arrived at the hospital shortly after the call and

saw that although Winter was in poor physical shape, he had all

his mental faculties about him and understood perfectly what he

was doing and was quite certain about the manner in which he wished

to dispose of his assets.   Delaney explained that Winter was not

in a good way physically due to oxygen issues, but was lucid.

     Defendants and JoAnn B. were present when Delaney arrived at

the hospital, but Steinberg left when he arrived.     Delaney knew

Steinberg and Morrison, but had never before met Belmont.   Delaney

described Belmont as "a very aggressive cousin."   Explaining what

he meant by "aggressive," Delaney testified that Belmont

          was a very caring cousin. She was there. She
          was at the hospital, and probably no different
          than me or anyone else, but she -- I didn't
          use it in the pejorative sense, but certainly
          she was very active. . . . And by the way I
          would use that word for myself as well.      I
          would use it for my sisters as well. . . .
          Just she was very active.

     Winter told Delaney that he wanted a will and directed Delaney

to prepare a new will to include Belmont, Morrison, and their

respective family members as beneficiaries.     Winter also stated

he wished to bequeath his antique cars, parts, and tools to

plaintiffs Angelo and Philip Giudice.   Winter directed Belmont and

Morrison to prepare and provide to Delaney a list of family members

he wanted included in the will, which they wrote in Winter's and


                                5                           A-0250-15T4
Delaney's presence.       Delaney handwrote the will, which included

the bequests to Angelo and Philip Giudice, showed it to Winter,

and also read to him the list of names Belmont and Morrison had

prepared.     Winter acknowledged each name by verbally saying "yes."

     Winter named Belmont as executrix.          He told Delaney he had

trust in Belmont and was confident in her abilities to carry out

his wishes.     Winter spoke very glowingly to Delaney about Belmont

and Morrison, and trusted them to take care of his finances.

Winter executed the handwritten will on February 3, 2013, and

Belmont and Morrison witnessed his execution.

     On   the   morning    of   February   4,   2013,   Delaney   had   the

handwritten will reduced to a formal will that reflected precisely

what Winter had requested and was substantively identical to the

handwritten will.     Delaney returned to the hospital that morning

to have Winter execute the formal will, but saw that Winter was

"in bad shape" and in no position to execute any documents.

However, when Delaney returned to the hospital that evening, Winter

had "miraculously" recovered, so Delaney discussed the formal will

and list of beneficiaries with him and he executed the will, with

Belmont and Morrison again witnessing the execution. The will

expressly revoked all prior wills and codicils.

     Within a day after executing the will, Winter realized that

he forgot to include Steinberg as a beneficiary.             Winter told

                                     6                             A-0250-15T4
Belmont    and    Delaney      that   he   wanted   to   add    Steinberg     as    a

beneficiary, and instructed Delaney to prepare a new will. Delaney

prepared the Will and returned to the hospital on February 7,

2013.     Defendants were with Winter at the hospital when Delaney

arrived, and he asked them to leave the room.                     Delaney spoke

privately with Winter to ensure he intended to make the bequests

stated in the Will and fully understood the document.                    Delaney

explained the Will to Winter and told him that Steinberg was added

as a beneficiary.         Delaney saw that Winter "clearly was in a

condition where he could execute the document, unlike . . . on

February the 4th."             Upon being completely satisfied the Will

reflected Winter's intention and that Winter fully understood it,

Delaney had Winter execute it in the presence of his wife and

Morrison. The Will expressly revoked all prior wills and codicils.

Delaney sent or gave the Will to Winter, and they later talked

about it when Winter went to Delaney's home on March 16, 2013.

     Regarding Winter's testamentary capacity, Delaney certified:

"There is no doubt in my mind that [Winter] was of sound mind at

the time he executed his Will, knew what he was signing, knew who

his beneficiaries were, and that the Will he asked me to draft

clearly reflected his intent and his wishes."                  Delaney testified

at deposition: "I've dealt with people enough to know whether

someone    is    lucid   and    competent.     [Winter]    clearly    was      in   a

                                           7                                A-0250-15T4
condition where he could execute the document, unlike when I went

there on February [4, 2013]."

     Plaintiffs admitted Steinberg was not aware of Winter's 1999

will or that Winter had executed the three wills in February 2013.

They also admitted Steinberg had no input into the Will, made no

recommendations concerning its content, and did not learn he was

a beneficiary under the Will until late May 2013.

     Winter recovered, was released from the hospital in late

February 2013, and received outpatient chemotherapy.    He resumed

his normal activities, including shopping and driving, and also

had "very extensive" involvement in a complicated real estate

transaction.   When plaintiff JoAnn Giudice visited Winter at his

home in March 2013, she saw he was physically weak, but did not

appear to have any mental or cognitive deficiencies.

     Winter had instructed Delaney to prepare a power of attorney

naming Morrison and Steinberg as power of attorney, and made very

clear to Delaney that he wanted them to have power of attorney.

Winter also instructed Delaney to prepare an advance directive for

health care naming Belmont and JoAnn B. as his health care proxies.

     Delaney prepared the documents and Winter signed them at

Delaney's home on March 16, 2013.   Delaney testified that Winter

had "made a miraculous comeback" and "was fully competent and

conversant, and knew exactly and precisely what he wanted to do

                                8                           A-0250-15T4
at that time.   [Belmont] was not even present at the time. . . .

[Winter] was lucid and of sound mind when these documents were

executed on March 16, 2013."     Delaney specifically asked Winter

if he wanted to make any changes to the Will, and Winter said he

did not.   Delaney certified that:

           Had [Winter] wished to change his Will after
           it was executed in the hospital on February
           7, 2013, and during the more than four months
           between that time and his death in June of
           that year, he most assuredly would have done
           so, either before or after the March 16, 2013
           visit when he had me prepare the Power of
           Attorney and Health Care Proxy. This simply
           did not occur.

     Delaney testified that "in March it was clear and unambiguous

that [Winter] was satisfied with his Will."     He also testified

that although Lorraine told him Winter wanted to make changes to

the Will, and there was a "piece of paper" to that effect, which

was lost, Winter never confirmed this or contacted him to make any

changes to the Will.

     Defendants spent almost every day with Winter from the time

he became ill, and cared for him until he died.      In mid-April

2013, Winter suffered a significant setback in his health and was

hospitalized in late May 2013.   He died on June 13, 2013.

     Plaintiffs challenged the Will based on undue influence.       On

January 12, 2015, the court ordered plaintiffs to serve expert

reports by March 30, 2015, and extended discovery to April 15,

                                 9                           A-0250-15T4
2015.    Discovery had long-ended when, on June 3, 2015, plaintiffs

filed a motion to amend the complaint to add claims of mistake,

lack    of   testamentary    capacity,     and   "Forgery    With   Respect   to

[Winter's] Pension[,]" and on June 5 and 18, 2105, they served

expert reports. Defendants then filed motions for summary judgment

and to strike the expert reports, and plaintiffs filed a cross-

motion, seeking to shift the burden of proof to defendants on the

issue of undue influence.

       The motion judge denied plaintiffs' motion to amend the

complaint, finding no evidence that Winter lacked testamentary

capacity at the time he executed the Will, and no evidence of

mistake or fraud.     After making these findings, the judge advised

the parties that during the year 2000, he was a partner at the law

firm of Cooper, Rose & English, where Delaney was also a partner.

Delaney was associated with a different law firm at the time Winter

executed the Will.        The judge afforded the parties the opportunity

to object, but no one objected.

       The judge then addressed the summary judgment motions.                 The

judge found there was no confidential relationship between Winter

and    defendants   and    nothing   to    suggest   there   were   suspicious

circumstances.      The judge determined the uncontroverted facts

established that Winter was competent when he executed the Will;

had resumed his normal life and engaged in business transactions

                                      10                               A-0250-15T4
after executing the Will; and never sought to change the Will.

The judge concluded that Winter was not under any undue influence

when he executed the Will and even if he was, he ratified the Will

by his conduct thereafter.

                               II.

     Plaintiffs first contend the judge abused his discretion in

not granting leave to amend the complaint.    We disagree.

     "Rule 4:9-1 requires that motions for leave to amend be

granted liberally" and that "the granting of a motion to file an

amended complaint always rests in the court's sound discretion."

Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437,

456-57 (1998).   The exercise of discretion requires a two-step

process: whether the non-moving party will be prejudiced, and

whether granting the amendment would nonetheless be futile.     Notte

v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).     "Courts are

thus free to refuse leave to amend when the newly asserted claim

is not sustainable as a matter of law."      Interchange State Bank

v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997) (quoting

Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)).

"It is well settled that an exercise of that discretion will be

sustained where the trial court refuses to permit new claims and

new parties to be added late in the litigation and at a point at

which the rights of other parties to a modicum of expedition will

                               11                             A-0250-15T4
be prejudicially affected."     Murray v. Plainfield Rescue Squad,

418 N.J. Super. 574, 591 (App. Div. 2011) (citation omitted),

rev'd on other grounds, 210 N.J. 581 (2012).    We discern no abuse

of discretion in the denial of plaintiffs' motion to amend the

complaint.

     Plaintiffs filed their motion to amend late in the litigation,

and well after the close of discovery.     To support their lack of

testamentary capacity claim, they relied on expert reports that

were not properly before the court, as the reports were served in

violation of the January 12, 2015 order, and plaintiffs never

moved to extend discovery to permit late service.     In any event,

the experts did not opine that Winter lacked testamentary capacity

at the time he signed the Will; they merely opined he "had

diminished capacity and was subject to undue influence due to his

severe disabilities."     Because there was no evidence that Winter

lacked testamentary capacity at the time he executed the Will,

plaintiffs' lack of testamentary capacity claim was not factually

or legally sustainable.

     Plaintiffs' mistake claim lacks factual and legal support as

well.   Plaintiffs alleged there was a mistake in the content of

the Will.    A mistake concerning the content of a will is known as

"probable intent."     "The doctrine permits the reformation of a

will in light of a testator's probable intent by 'searching out

                                 12                         A-0250-15T4
the probable meaning intended by the words and phrases in the

will.'"    In re Estate of Flood, 417 N.J. Super. 378, 381 (App.

Div. 2010) (quoting Engle v. Siegel, 74 N.J. 287, 291 (1977)),

certif. denied, 206 N.J. 64 (2011).      "[E]xtrinsic evidence may be

offered not only to show an ambiguity in a will but also, if an

ambiguity exists, 'to shed light on the testator's actual intent.'"

Ibid. (quoting Wilson v. Flowers, 58 N.J. 250, 263 (1971)). "Where

the doctrine has been used it has been done only with caution and

to clarify ambiguities in a will[.]"      In re Estate of Gabrellian,

372 N.J. Super. 432, 442 (App. Div. 2004), certif. denied, 182

N.J. 430 (2005).

     There are no ambiguities in the Will.      The Will is clear and

unambiguous as to Winter's beneficiaries, and there is no competent

extrinsic evidence that would render its terms ambiguous.       Winter

directed preparation of the list of beneficiaries, the list was

read to him, and he acknowledged each name by verbally saying

"yes."    After executing the Will, Winter was fully competent.       He

stated he wished to make no changes to his Will, and never

contacted Delaney to change the beneficiaries.        The record does

not support plaintiffs' claim that Winter made a mistake in his

beneficiary designations.

     Plaintiffs' "Forgery With Respect to Pension" claim also

lacks factual and legal support.      Plaintiffs asserted that someone

                                 13                            A-0250-15T4
forged a State of New Jersey, Division of Pensions and Benefit

designation of beneficiary form for Winter's pension, which named

Morrison as the beneficiary of Winter's pension. However, Morrison

was not designated as the beneficiary of Winter's pension; she was

designated as the beneficiary of his life insurance, and did not

receive Winter's pension benefits.      More importantly, there is no

evidence of a forgery.     That Morrison could not confirm it was

Winter's signature on the form does not prove forgery.

                                III.

     Plaintiffs   next   challenge    the   judge's   grant   of   summary

judgment. They argue there was a confidential relationship between

Winter and defendants and suspicious circumstances, and the judge

erred in failing to shift the burden of proof to defendants.

     Our review of a ruling on summary judgment is de novo,

applying the same legal standard as the trial court. Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199

(2016) (citation omitted).    Thus, we consider, as the trial judge

did, "whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law."       Liberty Surplus Ins.

Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

Summary judgment must be granted "if the pleadings, depositions,

                                 14                                A-0250-15T4
answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact challenged and that the moving party is entitled

to a judgment or order as a matter of law."   Templo Fuente, supra,

224 N.J. at 199 (quoting R. 4:46-2(c)).    "[C]onclusory and self-

serving assertions by one of the parties are insufficient to

overcome the motion."     Puder v. Buechel, 183 N.J. 428, 440-41

(2005) (citations omitted).     Applying the above standard, we

discern no reason to reverse the grant of summary judgment.

     "[I]t is generally presumed that 'the testator [is] of sound

mind'" to execute a will.     Haynes v. First Nat'l State Bank of

N.J., 87 N.J. 163, 175-76 (1981) (quoting Geller v. Livingston, 5

N.J. 65, 71 (1950)).    That presumption can be overcome, however,

upon a showing of undue influence. Id. at 176. "[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[.]"   In re Estate of Folcher,

224 N.J. 496, 512 (2016) (alteration in original) (quoting In re

Estate of Stockdale, 196 N.J. 275, 302-03 (2008)).      As we have

held:

          Undue influence is exerted where a testator
          is coerced to do that which he would not have
          done if left to himself, or where there is

                                15                          A-0250-15T4
               importunity which cannot be resisted and is
               yielded to for the sake of peace. . . . The
               clarifying test of the matter . . . is whether
               the testator's mind, when he made the will,
               was such that, had he expressed it, he would
               have said: "This is not my wish, but I must
               do it."

               [In re Estate of Weeks, 29 N.J. Super. 533,
               542 (App. Div. 1954) (citations omitted).]

     The will challenger normally bears the burden of establishing

undue influence in execution of a will.                 Ibid.    However, "[w]hen

there    is    a    confidential     relationship      coupled    with   suspicious

circumstances, undue influence is presumed and the burden of proof

shifts    to       the   will    proponent    to    overcome    the   presumption."

Folcher, supra, 224 N.J. at 512 (alteration in original) (quoting

Stockdale, supra, 196 N.J. at 303).                 The party defending the will

overcomes the presumption of undue influence by demonstrating that

the preponderance of the evidence reveals undue influence did not

taint the will.          Ibid.

     A    confidential          relationship       "generally    'encompasses    all

relationships whether legal, natural or conventional in their

origin, in which confidence is naturally inspired, or, in fact,

reasonably exists.'"            Ibid. (quoting Pascale v. Pascale, 113 N.J.

20, 34 (1988)).          "In general, there is a confidential relationship

if the testator, 'by reason of . . . weakness or dependence,

reposes trust in the particular beneficiary, or if the parties


                                         16                                 A-0250-15T4
occupied        a    relation[ship]   in    which       reliance     [was]   naturally

inspired or in fact exist[ed].'"                 Stockdale, supra, 196 N.J. at

303 (alteration in original) (quoting In re Hopper, 9 N.J. 280,

282   (1952)).            A    "confidential          relationship"       exists   when

circumstances make it certain that the parties do not deal on

equal terms, but on one side there is an overmastering influence,

or,   on   the       other,    weakness,   dependence       or    trust    justifiably

reposed.        In re Estate of Hopper, 9 N.J. 280, 282 (1952).

      "Suspicious         circumstances"        are    those     circumstances     that

"require explanation."            Haynes, supra, 87 N.J. at 176 (quoting In

re Rittenhouse's Will, 19 N.J. 376, 379 (1955)).                           "Suspicious

circumstances . . . need only be slight."                      Stockdale, supra, 196

N.J. at 303 (citation omitted).

      We disagree there was no confidential relationship between

Winter and defendants.           Defendants had close familial and personal

relationships with Winter, and he trusted them and depended on

them during his illness to assist with his medical, personal, and

financial affairs. This was sufficient to establish a confidential

relationship.

      Arguably, there were suspicious circumstances, as defendants

were present when Winter called Delaney to the hospital to prepare

a new will.          However, there was no evidence of coercion or mental,

moral,     or       physical   exertion    of   any     kind    by   defendants    that

                                           17                                  A-0250-15T4
destroyed Winter's free will to follow the dictates of his own

mind as it related to the disposition of his assets.               Winter was

lucid when he executed the Will and the decision to do so was his

and his alone.       The Will reflected Winter's intent as to the

disposition   of    his   assets,   and    there   is   no   evidence    to    the

contrary.     The    preponderance    of     the   evidence    reveals       undue

influence did not taint the Will.           Accordingly, summary judgment

was properly granted.

                                     IV.

     Lastly, plaintiffs argue the judge should have drawn an

adverse inference against defendants; Winter revoked the Will or

prepared a holographic codicil; and the judge should have recused

himself   because    of   the   appearance    of   impropriety.         We    have

considered these arguments in light of the record and applicable

legal principles, and conclude they are without sufficient merit

to warrant discussion in a written opinion.             R. 2:11-3(e)(1)(E).

However, we make the following brief comments.

     Plaintiffs never moved before the judge for his recusal.                  See

Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990) (requiring

a motion to "be made to the judge sought to be disqualified")

(citing R. 1:12-2; N.J.S.A. 2A:15-49).             Because plaintiffs never

moved for recusal, the issue is waived and not preserved for

appeal.

                                     18                                  A-0250-15T4
Affirmed.




            19   A-0250-15T4
