IN THE MATTER OF A PETITION FOR EXPUNGEMENT OF MARTIN v. CARLUCCIO(BERGEN COUNTY AND STATEWIDE)
A-5110-15T3
| N.J. Super. Ct. App. Div. | Jul 13, 2017Background
- Harold Becker executed a will on March 6, 2012, prepared by longtime attorney Mark Roddy, naming his youngest son Brandon as sole beneficiary and Lynda Becker Kelly (his ex-wife, living with him at death) as executor; the original will could not be produced at trial.
- Testator mailed the original will after execution; testimony conflicted whether mailing occurred in March 2012 or October 2012 and whether the will remained in Brandon's prison possession before the testator's death in September 2013.
- After Harold died, Lynda filed to probate a copy of the March 2012 will; Stuart and Scott (two older sons) contested, alleging destruction/revocation and lack of testamentary capacity; undue-influence claim was later abandoned.
- At bench trial, testimony from Roddy (confirming execution and testator intent), Lynda, Brandon, and Scott produced factual disputes about the will's location and whether the testator had access to it; trial judge admitted a copy to probate and appointed Lynda administrator.
- Defendants moved for a new trial asserting (1) the presumption of revocation should have applied because the missing original was last or possibly accessible to the testator, and (2) newly discovered investigatory evidence undermined Brandon's testimony; the Probate Part denied the motion.
- Appellate division affirmed, deferring to trial judge credibility findings and holding defendants failed to show miscarriage of justice or timely newly discovered evidence warranting a new trial.
Issues
| Issue | Plaintiff's Argument (Kelly) | Defendant's Argument (Estate of Scott Becker) | Held |
|---|---|---|---|
| Whether the presumption of revocation applies where the original will cannot be located | Will was mailed away by testator, so he lacked possession or access; presumption does not apply | Testator visited Brandon in prison and could have accessed the will there; presumption of revocation should apply | Presumption did not apply—trial judge found no evidence testator had access or knew location; appellate court affirmed |
| Burden and quantum of proof to probate a lost will | Proponent (Kelly) met clear-and-convincing standard via attorney testimony and circumstances showing intent | Insufficient clear-and-convincing evidence given inconsistent testimony about mailing/location | Held for proponent; Roddy’s testimony and surrounding evidence rebutted any presumption and proved testamentary intent |
| Whether trial judge improperly weighed credibility or committed legal error warranting a new trial | Credibility determinations and factual findings were proper and supported record | Credibility conflicts and alleged errors required a new trial or limited additional testimony | No miscarriage of justice; appellate court deferred to trial judge’s credibility findings |
| Whether newly discovered evidence (investigator interview, criminal records) warranted a new trial | Evidence was not newly discoverable only after trial and would not change result given existing proof | Investigator located evidence casting doubt on Brandon’s testimony and showing A.J. denied receipt of the will—merits new trial | Denied: evidence was discoverable earlier and defendants elected limited discovery; no showing that new evidence would produce a different outcome |
Key Cases Cited
- Dolson v. Anastasia, 55 N.J. 2 (defining "miscarriage of justice" standard for new trial)
- Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506 (describing circumstances that constitute a miscarriage of justice)
- Jastram v. Kruse, 197 N.J. 216 (appellate deference to trial court on witness credibility)
- In re Will of Calef, 109 N.J. Eq. 181 (presumption of revocation where testator had access to missing will)
- In re Estate of Ehrlich, 427 N.J. Super. 64 (requirement that evidence rebutting presumption of revocation be clear, satisfactory, and convincing)