NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3649-22
IN THE MATTER OF THE ESTATE OF BONNIE KREMER, DECEASED. ____________________________
Submitted October 22, 2024 – Decided December 4, 2024
Before Judges Gooden Brown and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. 281685.
Deitch & Perone, PC, attorneys for appellant Patrice Berman (Tanis B. Deitch, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
After a summary proceeding conducted pursuant to Rule 4:67, defendant
Patrice Berman appeals two Chancery Division orders. Defendant sought to
probate a copy of the will of her deceased sister, Bonnie Kremer. The Chancery
Division found defendant failed to overcome the presumption that decedent had
revoked her will, and it appointed an administrator for the estate. Defendant appeals, contending the court committed procedural and legal errors which
warrant reversal. We affirm in part and remand for proceedings consistent with
this opinion.
I.
Bonnie Levine executed a will on October 7, 1992. It was signed by two
witnesses and notarized. The will named Bonnie's sisters, Pamela McGinnis and
Patrice Berman, as executrix and contingent executrix respectively.
In 1997 Bonnie married Joseph Kremer. The couple had three children,
who were born between 2003 and 2005. The record shows Bonnie did not
execute another will after 1992, and the record also shows that her 1992 will did
not name plaintiff or their three children.
In 2014, Bonnie Kremer filed for divorce. After protracted divorce
litigation lasting nearly ten years, Bonnie passed away on January 24, 2023. The
Family Part dismissed her divorce complaint two days later.
Joseph Kremer then sought appointment as administrator of Bonnie's
estate. Patrice Berman opposed, and, in February 2023, Joseph Kremer filed a
verified complaint and order to show cause seeking appointment as
administrator of Bonnie's estate. He named Bonnie's sisters, Pamela McGinnis
and Patrice Berman, as defendants. Co-defendant Patrice Berman answered and
A-3649-22 2 cross-claimed, seeking to probate the 1992 will and also seeking appointment as
executor of Bonnie's estate.
After a hearing in which the trial court considered the submissions of
counsel, including certifications of five witnesses,1 the trial court issued an order
dated July 13, 2023. The court found:
the presumption of revocation was not overcome by the [d]efendant, Patrice Berman. The [d]ecedent revoked the [w]ill, as she did not give possession of the original to her [attorney] or any other family member. Further, given that the [w]ill was executed in 1992 before the birth of her children and under her maiden name the [c]ourt finds that the [d]ecedent revoked her Will executed in 1992 following [N.J.S.A.] 3B:3-13[.]
Finding decedent revoked the will, the court ordered distribution of the
estate pursuant to N.J.S.A. 3B:5-3 without resolving the question of appointment
of the administrator.
Defendant appealed the order on July 31, and simultaneously moved
before the Chancery Division for a stay, as well as a revised order with findings
of fact and conclusions of law pursuant to Rule 1:7-4(a). On September 7, 2023
plaintiff again applied for appointment as administrator, and defendant cross-
1 Five witnesses submitted certifications for the trial court's review. They included: plaintiff Joseph Kremer; defendant Patrice Berman; Frank DeFalco; Efrain Cabrera; and Robin Schneider, Esq., who served as divorce counsel to decedent. A-3649-22 3 moved, opposing plaintiff's motion and seeking an order: rejecting plaintiff's
application to be appointed as estate administrator; restraining plaintiff from
collecting rents or taking any other action on behalf of the estate; compelling
plaintiff to prepare and submit an accounting; appointing a temporary
administrator for the estate; and appointing a receiver to manage real property
assets in the estate.
In opposition to plaintiff's motion, defendant submitted a second
certification. Defendant had worked in decedent's party rental business, and she
alleged decedent possessed cash assets of more than $100,000 and real estate
assets valued at over $2,000,000. Defendant listed several real estate and
business assets that decedent owned, some of which were acquired before her
marriage to plaintiff. She identified multiple real estate assets as income
producing properties. Defendant also alleged that plaintiff interfered with
decedent's active business operations, including closing a party rental business
and a consignment business, unilaterally firing employees, removing business
vehicles and returning consignment inventory without authorization. Finally,
defendant alleged that plaintiff had failed to supply needed tax information to
decedent during the divorce proceeding, delaying the filing of federal and state
tax returns and exposing decedent to penalties. In her certification, defendant
A-3649-22 4 contended that these allegations disqualified plaintiff as administrator and
warranted the appointment of an independent administrator.
After the October 20 hearing, the Chancery Division made additional
findings and issued a modified order on December 22, 2023:
[T]he presumption of revocation was not overcome by . . . [d]efendant, Patrice Berman. New Jersey Chancery presumes that if the original [w]ill cannot be found, the [w]ill was revoked by the testatrix. This presumption can be rebutted through clear and convincing evidence.
....
Patrice Berman did not meet the burden of clear, satisfactory, and convincing evidence. No evidence was presented to the [c]ourt illustrating that the [d]ecedent never gave up possession of the [w]ill. Patrice Berman never possessed the original or even a copy of the [w]ill, having only received a copy through the [d]ecedent's attorney, Robin Schneider, Esq. Further, the burden of clear and convincing evidence must also be shown in reference to the contents of the [w]ill. In re Will of Roman, 80 N.J. Super. 481, 483 (Cty. Ct. 1963). The [d]ecedent executed her [w]ill in [1992] before the birth of her children and under her maiden name. Patrice Berman did not show that . . . [d]ecedent ever gave possession of the [w]ill to someone else, nor did she show that the [d]ecedent would not have wanted to update her [w]ill to include her children. The [c]ourt finds that the [d]ecedent revoked her [w]ill executed in 1992 . . . .
The modified order denied defendant's request for a stay of the July 13
order and appointed Ann L. Renaud as estate administrator.
A-3649-22 5 Defendant appealed both the July 13 order and the December 22 order,
arguing the trial court erred by reaching an unsupported legal conclusion that
decedent's will was revoked, and ignored evidence that decedent's will existed
at the time of her death.
II.
We will not disturb a trial court's findings of fact in a summary action
proceeding under Rule 4:67 "unless . . . they are so manifestly unsupported by
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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-3649-22
IN THE MATTER OF THE ESTATE OF BONNIE KREMER, DECEASED. ____________________________
Submitted October 22, 2024 – Decided December 4, 2024
Before Judges Gooden Brown and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. 281685.
Deitch & Perone, PC, attorneys for appellant Patrice Berman (Tanis B. Deitch, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
After a summary proceeding conducted pursuant to Rule 4:67, defendant
Patrice Berman appeals two Chancery Division orders. Defendant sought to
probate a copy of the will of her deceased sister, Bonnie Kremer. The Chancery
Division found defendant failed to overcome the presumption that decedent had
revoked her will, and it appointed an administrator for the estate. Defendant appeals, contending the court committed procedural and legal errors which
warrant reversal. We affirm in part and remand for proceedings consistent with
this opinion.
I.
Bonnie Levine executed a will on October 7, 1992. It was signed by two
witnesses and notarized. The will named Bonnie's sisters, Pamela McGinnis and
Patrice Berman, as executrix and contingent executrix respectively.
In 1997 Bonnie married Joseph Kremer. The couple had three children,
who were born between 2003 and 2005. The record shows Bonnie did not
execute another will after 1992, and the record also shows that her 1992 will did
not name plaintiff or their three children.
In 2014, Bonnie Kremer filed for divorce. After protracted divorce
litigation lasting nearly ten years, Bonnie passed away on January 24, 2023. The
Family Part dismissed her divorce complaint two days later.
Joseph Kremer then sought appointment as administrator of Bonnie's
estate. Patrice Berman opposed, and, in February 2023, Joseph Kremer filed a
verified complaint and order to show cause seeking appointment as
administrator of Bonnie's estate. He named Bonnie's sisters, Pamela McGinnis
and Patrice Berman, as defendants. Co-defendant Patrice Berman answered and
A-3649-22 2 cross-claimed, seeking to probate the 1992 will and also seeking appointment as
executor of Bonnie's estate.
After a hearing in which the trial court considered the submissions of
counsel, including certifications of five witnesses,1 the trial court issued an order
dated July 13, 2023. The court found:
the presumption of revocation was not overcome by the [d]efendant, Patrice Berman. The [d]ecedent revoked the [w]ill, as she did not give possession of the original to her [attorney] or any other family member. Further, given that the [w]ill was executed in 1992 before the birth of her children and under her maiden name the [c]ourt finds that the [d]ecedent revoked her Will executed in 1992 following [N.J.S.A.] 3B:3-13[.]
Finding decedent revoked the will, the court ordered distribution of the
estate pursuant to N.J.S.A. 3B:5-3 without resolving the question of appointment
of the administrator.
Defendant appealed the order on July 31, and simultaneously moved
before the Chancery Division for a stay, as well as a revised order with findings
of fact and conclusions of law pursuant to Rule 1:7-4(a). On September 7, 2023
plaintiff again applied for appointment as administrator, and defendant cross-
1 Five witnesses submitted certifications for the trial court's review. They included: plaintiff Joseph Kremer; defendant Patrice Berman; Frank DeFalco; Efrain Cabrera; and Robin Schneider, Esq., who served as divorce counsel to decedent. A-3649-22 3 moved, opposing plaintiff's motion and seeking an order: rejecting plaintiff's
application to be appointed as estate administrator; restraining plaintiff from
collecting rents or taking any other action on behalf of the estate; compelling
plaintiff to prepare and submit an accounting; appointing a temporary
administrator for the estate; and appointing a receiver to manage real property
assets in the estate.
In opposition to plaintiff's motion, defendant submitted a second
certification. Defendant had worked in decedent's party rental business, and she
alleged decedent possessed cash assets of more than $100,000 and real estate
assets valued at over $2,000,000. Defendant listed several real estate and
business assets that decedent owned, some of which were acquired before her
marriage to plaintiff. She identified multiple real estate assets as income
producing properties. Defendant also alleged that plaintiff interfered with
decedent's active business operations, including closing a party rental business
and a consignment business, unilaterally firing employees, removing business
vehicles and returning consignment inventory without authorization. Finally,
defendant alleged that plaintiff had failed to supply needed tax information to
decedent during the divorce proceeding, delaying the filing of federal and state
tax returns and exposing decedent to penalties. In her certification, defendant
A-3649-22 4 contended that these allegations disqualified plaintiff as administrator and
warranted the appointment of an independent administrator.
After the October 20 hearing, the Chancery Division made additional
findings and issued a modified order on December 22, 2023:
[T]he presumption of revocation was not overcome by . . . [d]efendant, Patrice Berman. New Jersey Chancery presumes that if the original [w]ill cannot be found, the [w]ill was revoked by the testatrix. This presumption can be rebutted through clear and convincing evidence.
....
Patrice Berman did not meet the burden of clear, satisfactory, and convincing evidence. No evidence was presented to the [c]ourt illustrating that the [d]ecedent never gave up possession of the [w]ill. Patrice Berman never possessed the original or even a copy of the [w]ill, having only received a copy through the [d]ecedent's attorney, Robin Schneider, Esq. Further, the burden of clear and convincing evidence must also be shown in reference to the contents of the [w]ill. In re Will of Roman, 80 N.J. Super. 481, 483 (Cty. Ct. 1963). The [d]ecedent executed her [w]ill in [1992] before the birth of her children and under her maiden name. Patrice Berman did not show that . . . [d]ecedent ever gave possession of the [w]ill to someone else, nor did she show that the [d]ecedent would not have wanted to update her [w]ill to include her children. The [c]ourt finds that the [d]ecedent revoked her [w]ill executed in 1992 . . . .
The modified order denied defendant's request for a stay of the July 13
order and appointed Ann L. Renaud as estate administrator.
A-3649-22 5 Defendant appealed both the July 13 order and the December 22 order,
arguing the trial court erred by reaching an unsupported legal conclusion that
decedent's will was revoked, and ignored evidence that decedent's will existed
at the time of her death.
II.
We will not disturb a trial court's findings of fact in a summary action
proceeding under Rule 4:67 "unless . . . they are so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Tractenberg v. Twp. of W. Orange, 416
N.J. Super. 354, 365 (App. Div. 2010) (internal quotation marks omitted)
(quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484
(1974)) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155
(App. Div. 1963)). However, "[a] trial court's interpretation of the Chancery
and the legal consequences that flow from established facts are not entitled to
any special deference." Tractenberg, 416 N.J. Super. at 365 (quoting Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
A-3649-22 6 III.
We consider defendant's points on appeal.
First, defendant argues that the Chancery Division improperly found that
decedent's will was revoked. We disagree.
It is well-settled that if a will was last seen in the possession of the
decedent and cannot be found upon the decedent's death, there is a presumption
the decedent destroyed the will with the intent to revoke it. In re Davis' Will,
127 N.J. Eq. 55, 57 (E. and A. 1940) (“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.”); In re
Bryan's Will, 125 N.J. Eq. 471, 473–74 (E. & A. 1939) (“The law ... applicable
to ... 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.”); Campbell v.
Smullen, 96 N.J. Eq. 724, 727 (E. & A. 1924); In re Calef's Will, 109 N.J. Eq.
181, 185 (N.J. Prerog. Ct. 1931). A proponent intending to probate a copy of a
lost will must provide "clear, satisfactory, and convincing [evidence] to rebut
the presumption of the original's revocation or destruction . . . ." In re Estate of
Ehrlich, 427 N.J. Super. 64, 75 (App. Div. 2012) (citations omitted).
A-3649-22 7 For the presumption of revocation to apply to a lost will, a testator must
have had access to their will before their death, and the will cannot be found
after their death. In re Davis' Will, 127 N.J. Eq. at 57. A decedent's possession,
or opportunity for repossession, of a lost will at the time of their death is a
prerequisite for the presumption of revocation to apply. In re Calef's Will, 109
N.J. Eq. at 186 ("Our law . . . 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, opportunity of repossession, and upon such showing the presumption of
revocation remains until rebutted by evidence which is clear, convincing and
satisfactory.") (emphasis added).
The record shows no other party besides decedent had possession of the
original will and further shows the will was never found. Plaintiff certified that
his search for it was unsuccessful. Defendant cites plaintiff's conduct in taking
decedent's files from her warehouse and office after her death, presumably to
show that the original will exists, but that its whereabouts have been concealed
by plaintiff. However, without credible evidence detailing the existence and
storage of decedent's original will, assertions that plaintiff has intentionally
concealed or destroyed it are speculation. No witness certifications offered by
A-3649-22 8 defendant identifies anyone who saw the original will or had knowledge of its
whereabouts.
Because the record shows that decedent never gave up possession of the
original will, and it cannot be found, the Chancery Division properly found the
presumption of revocation applied.
Once the presumption of revocation applies, the proponent of the will
must provide clear and convincing evidence to rebut the presumption. In re
Davis' Will, 127 N.J. Eq. at 57. Defendant argues that she has "overcome the
presumption the [w]ill was lost, stolen or destroyed," citing to her own
certification that decedent "would hide important papers and never destroy[]
anything." Defendant also references the certification of Robin Schneider, Esq.,
to argue that the deceased "would have inquired about the consequence of
destroying her current [w]ill and never did."
We agree with the Chancery Division, which found defendant failed to
show evidence that decedent would have declined to update her will to include
her own children. The record shows defendant stated in her own certification
that decedent "was a procrastinator" and that defendant and decedent "did not
have a good relationship at the end of [decedent's] life." Decedent's lawyer,
Schneider, stated in her certification that decedent had discussed revising her
A-3649-22 9 will but that they "never had time to do so." Defendant proffered no evidence
that decedent wanted the 1992 will to control distribution of her estate, despite
her marriage in 1997 and the birth of her children in 2003 and 2005.
We discern no abuse of discretion in the Chancery Division's
determination that defendant failed to overcome the presumption that decedent
revoked her will by clear and convincing evidence.
Defendant next contends that the trial court "arbitrarily ignored" evidence
that the original will was in existence at the time of Bonnie's death. We consider
this argument meritless, as it ignores our well-settled jurisprudence concerning
the presumption of revocation.
Finally, defendant offers several arguments on appeal which were not
raised below. She contends the Chancery Division committed error by: not
conducting a plenary hearing; failing to make proper findings of fact and
conclusions of law pursuant to Rule 1:7-4; requiring an original of the will for
probate, contrary to N.J.S.A. 3B:3-2; not granting a stay of its July 13 order; and
in ordering distribution according to N.J.S.A. 3B:5-3.
We generally decline to address issues not raised below. Appellate courts
will not consider issues that are not raised at the trial level when given an
opportunity to do so, "unless the questions so raised on appeal go to the
A-3649-22 10 jurisdiction of the trial court or concern matters of great public interest." Nieder
v. Royal Indem. Ins. Co., 62 N.J. 229, 235 (1973). For completeness, we
comment briefly on three of the points raised before us for the first time.
We review a trial court's decision regarding whether to hold a plenary
hearing under Rule 4:67 for abuse of discretion. N.J. Dep't of Envtl. Prot. v.
Midway Beach Condo. Ass'n, 463 N.J. Super. 346, 351 (App. Div. 2020). Rule
4:67-5 states that a court may try a summary action on the pleadings if the
"affidavits show palpably that there is no genuine issue of material fact." Given
that the record shows the original will has never been seen and no one knows
where it was stored, there is no genuine issue of material fact on the question of
overcoming the presumption of revocation. It follows that the Chancery
Division engaged in a proper exercise of discretion when it decided this dispute
on the pleadings and affidavits.
We dispose of defendant's argument on the court's denial of the stay by
noting that the motion does not comply with the standard for relief set forth in
Garden State Equality v. Dow, 216 N.J. 314 (2013). Defendant offered no
proofs which show a likelihood of success on the merits.
We briefly consider defendant's arguments about estate distribution.
Because the Family Part dismissed decedent's divorce complaint on January 24,
A-3649-22 11 2023, the Legislature's January 8, 2024 amendment to N.J.S.A. 3B:5-3,
subsection (d) pipeline retroactivity does not apply. 2 See Roik v. Roik, 477 N.J.
Super. 556, 574 (App. Div. 2024). Had pipeline retroactivity applied, subsection
(d) would have disqualified plaintiff from taking any share of decedent's estate.
Absent pipeline retroactivity, decedent's estate will be distributed by operation
of a now-defunct statute the Legislature recently modified to prevent the very
outcome contemplated here. Such an outcome is a matter of "great public
interest," and warrants our consideration despite the issue not being raised
below. Nieder, 62 N.J. at 235.
We note the Chancery Division did not provide findings of fact and
conclusions of law to support the portion of its orders which directed that the
estate be distributed pursuant to N.J.S.A. 3B:5-3. See R. 1:7-4. Therefore, we
remand to the Chancery Division to supplement the record solely on the question
of estate distribution and the applicability of N.J.S.A. 3B:5-3. We leave the
question of whether the court should solicit additional submissions 3 from
2 N.J.S.A. 3B:5-3(d)(1). 3 Defendant argues for application of the Supreme Court's holding in Carr v. Carr, 120 N.J. 336 (1990), to utilize equitable principles to establish a constructive trust from proceeds of decedent's estate for the benefit of the
A-3649-22 12 counsel, hear argument, or conduct a plenary hearing under Rule 4:67-5 to the
sound discretion of the court.
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed in part, remanded in part.
children of Bonnie and Joseph Kremer. Because the argument was not raised below, we do not consider it here.
A-3649-22 13