Law Lessons from In re Bende, Chan. Div. BER-P-48-13, Peter E. Doyne, A.J.S.C., April 24, 2013:
When a Will has been probated and letters testamentary issued, a contesting party may, pursuant to R. 4:85-1, “obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated.” (R. 4:85-1). However, the complaint must be filed “within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside [the] State at the time of the grant of probate or grant of letters, within six months thereafter.” R. 4:85-1.
There is recourse for some who do not file within the time constraints provided in R. 4:85-1. The rule states, “[i]f relief, however, is sought based upon R. 4:50-1 (d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances.” R. 4:85-1. Moreover, “[t]he time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.” R. 4:85-2.
R. 4:50-1, which is specifically referenced and made a part of R. 4:85-1, provides relief “from a final judgment or order” for several reasons. Subsection (f) contains what may be thought of as a “catchall” provision as it allows relief for “any other reason justifying relief from the operation of the judgment or order.” R. 4:50-1.
The parameters of this provision have been delineated by case law. In Hodgson v. Applegate, 31 N.J. 29, 34 (N.J. 1959), the Court, in discussing the predecessor to R. 4:50-1 held, “[the rule] does not, except in an extraordinary case, provide an appropriate means for bringing trial error under attack.” Hodgson v. Applegate, 31 N.J. at 34. Indeed, “the very essence of [subsection] (f) is its capacity for relief in exceptional situations.” Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (N.J. 1966).
Probate courts having limited application of subsection (f) to exceptional situations have considered various factual scenarios to determine whether they so qualify. For instance, In re Estate of Schifftner, 385 N.J. Super. 37 (App.Div. 2006), in considering the timeliness of a probate contest, the Appellate Division held, “indigence is not, in these circumstances, an ‘extraordinary’ reason justifying relief.” In re Estate of Schifftner, 385 N.J. Super. at 44.
In re Will of Small, 85 N.J. Super. 220 (App.Div. 1964) emphasized that application of subsection (f) is constrained by the time limitations provided in R. 4:85-1.((Small was written with respect to R.R. 5:3-4 which later became R. 4:85-1. R.R. 5:3-4 established a three month limitation which was later extended to four in R. 4:85-1.)) The application before the Appellate Division in Small was to vacate a judgment admitting a will to probate. The petitioner contended the Will was tainted by undue influence and lack of testamentary capacity. In denying the application, the Appellate Division held:
It is obvious that if petitioners can move to vacate a judgment of probate on the grounds of undue influence or lack of mental capacity of the testator, under subsection (f) of R.R. 4:62-2((R.R. 4:62-2 was the predecessor of R. 4:50-1)), there would be no reason for promulgation of R.R. 5:3-4((Small was written with respect to R.R. 5:3-4 which later became R. 4:85-1. R.R. 5:3-4 established a three month limitation which was later extended to four in R. 4:85-1.)), and the time limitation to appeal from such judgment — three((Small was written with respect to R.R. 5:3-4 which later became R. 4:85-1. R.R. 5:3-4 established a three month limitation which was later extended to four in R. 4:85-1.)) months after its entry in the case of residents and six months for non-residents — would be meaningless. In promulgating rules of practice it was not intended to have one rule rendered meaningless by another.
[In re Will of Small, 85 N.J. Super. 220, 225. (citing Hodgson v. Applegate, 31 N.J. 29, 37 (1959)).]
R. 4:80-6 sets forth the requirement for providing notice of probate of a Will:
Within 60 days after the date of the probate of a will, the personal representative shall cause to be mailed to all beneficiaries under the will and to all persons designated by R. 4:80-1(a)(3), at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request. Proof of mailing shall be filed with the Surrogate within 10 days thereof.
Although R. 4:80-6 seems to prescribe technical satisfaction of its requirements, the court In re Will of Landow, 83 N.J. Super. 110 (App.Div. 1964) expressly held:
. . .noncompliance with the literal requirements of R.R. 4:99-7((R.R. 4:99-7 discussed in Landow was the source of the current rule, R. 4:80-6)) as to written notice by the executor, where it is undenied appellant had actual notice, does not toll the limitation period prescribed in R.R. 5:3-4(a). We perceive no prejudice that has been visited upon appellant by reason of the failure to give the notice technically called for by the rule in question.
[Id. at 115]((In re Will of Ferrulli, 105 N.J. Super. 217, (Cty. Ct. 1969) wholly relied upon this portion of Landow when deciding a substantially similar fact pattern))
In In re Estate of Green, 175 N.J. Super. 595, (App.Div. 1980), the Appellate Division considered significantly different facts than were present in Landow. Importantly, the parties in Green were estranged and the appellant contesting the Will merely knew of the Will’s existence; he received no notice of probate. The Appellate Division held “[n]otice of the existence of a will is not notice of its actual content or of its date of probate. Id. at 598. Moreover, Green held:
. . .it is not an infrequent occurrence in will matters that ill feeling or familial disaffection leads to a lack of communication or personal contact. It is in such context that R.4:80-8((R.4:80-8 was the predecessor of current R. 4:80-6 and prescribed some of the same requirements with the addition that the Will be annexed to the mailing. In re Estate of Green, 175 N.J. Super. at 596. This is no longer required under R. 4:80-6. There is no explanation in the comments to the rule why the requirement the Will be provided was abandoned.)) has particular application and salutary effect. It is not realistic in the circumstances of this case to expect inquiry by a beneficiary to be the substitute for the executor’s duty, imposed by this rule, to notify beneficiaries of the probate judgment and to give them copies of the will.
[Id. at 597]
The key distinction made by the Appellate Division in Green in refusing to relax the notice requirements was that in Landow “actual notice was shown”. Green, supra, 175 N.J. Super. at 598.
The doctrine of equitable tolling, as described by the Appellate Division in F.H.U. v. A.C.U., 427 N.J. Super. 354 (App.Div. 2012), is traditionally limited to a few circumstances, including: “(1) [if] the defendant has actively misled the plaintiff, (2) if the plaintiff has ‘in some extraordinary way’ been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum. . .” Id. at 379 (emphasis added). Application of equitable tolling has arisen where a “claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (U.S. 1990).
Lastly, as an all encompassing principle of equity, R. 1:1-2(a) affords the court discretion to remit the rigorous compliance set forth in the New Jersey Court Rules. R. 1:1-2(a) provides:
The rules in Part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes and, in civil cases, consistent with the case management/trial management guidelines set forth in Appendix XX of these rules.
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