In the Matter of the Estate of John C. Gamble

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4086-23

IN THE MATTER OF THE ESTATE OF JOHN C. GAMBLE. _____________________________

Submitted March 9, 2026 – Decided July 31, 2026

Before Judges Natali and Bergman.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. P-000332-22.

Aihong You, attorney for appellant Zheng Wang.

Drazin & Warshaw, PC, attorneys for respondent Donna Delaney (Thomas J. DiChiara, on the brief).

In this probate matter, plaintiff Zheng Wang, the decedent John C.

Gamble's surviving spouse, challenges a June 18, 2024 Chancery Division order

that awarded: 1) her an elective share of her late husband's estate in the amount

of $21,781.85, and 2) defendant $394 in response to her counterclaim. The court subsequently entered an August 1, 2024 amended judgment that reduced

plaintiff's elective share to $14,806.27. We affirm all the orders under review.

I.

The decedent died on February 6, 2022 and is survived by plaintiff, his

second wife, and his daughter from a prior marriage, the defendant, who was

named executrix of the estate. At the time of his death, the decedent and plaintiff

were married and living together in Middletown. The decedent's will left all

assets in his name to defendant, except for a joint brokerage account with

plaintiff.

Plaintiff filed a complaint seeking her statutory elective share and an

accounting from the estate. Defendant counterclaimed, alleging that plaintiff

converted decedent's personal property such as jewelry and cash to her own use

and possession, plaintiff did not vacate the Middletown residence in a timely

fashion, and that plaintiff's actions caused property damage to the marital home.

The matter proceeded to a bench trial conducted over six non-consecutive

days. Before trial, plaintiff moved in limine and sought sanctions and an adverse

inference maintaining defendant committed spoliation of relevant evidence and

failed to produce documents belonging to the estate. Plaintiff's counsel

maintained that they made repeated attempts to obtain certain documents from

A-4086-23 2 defendant and argued that defendant allegedly hid material documents from

plaintiff. The court decided to reserve decision on plaintiff's application and

stated it would consider defendant's arguments in the context of the evidence

produced at trial.

At trial, plaintiff testified and also introduced bank statements, video

evidence, and appraisal reports. She specifically testified regarding her

marriage, the circumstances surrounding her immigration to the United States ,

and living with decedent in Middletown. She explained decedent's illness and

death and detailed defendant's behavior after her husband's death which ranged

from incidents where defendant removed mail and plaintiff's car from the

Middletown property as well as an incident where defendant and her husband

came into the house unannounced.

Shen Guang Dai, a friend of the Gamble family, testified that she checked

up on decedent while plaintiff and decedent were living separately. She also

stated she had visited decedent's home at least ten times before plaintiff arrived

in the United States. She further testified that she stayed with plaintiff at the

house for months after decedent was hospitalized to provide support and detailed

frequent visits by defendant to the home. She explained that defendant would

visit and during this period would remove boxes and documents and recounted

A-4086-23 3 that plaintiff never removed valuable items when she left, only some daily

necessities and clothes.

Defendant also testified and explained her involvement in handling her

father's bills and other responsibilities as well as her actions after his death. She

detailed that she paid all estate expenses, kept copies of invoices issued for

services rendered for the estate, and maintained the Middletown property. She

also rebutted plaintiff's claims regarding her removal of property from the estate.

Defendant's brother testified that decedent gifted plaintiff $30,000 to

permit her to pay fines and other expenses related to her visa issues. Both parties

presented expert testimony that addressed the value of the Middletown property

as of decedent's death. The court considered both reports and considered each

expert's methodology.

Defendant's expert testified that his appraisal method was a retrospective

appraisal, having walked through the Middletown property on January 3, 2024,

but appraising it based on its February 6, 2022 condition. He testified that his

evaluation methodology was based on measurements of the property, photos of

the property taken as of the effective date, comparable market sales data, and

tax records. He noted that the property "looked like a disaster" as of February

6th.

A-4086-23 4 He testified that the bathrooms were later fully renovated, the basement

had received mechanical repairs, the floor coverings were cleaned, the wallpaper

was removed, and ultimately it was "made much more livable by today's

standards." He further testified that he based his $405,000 appraisal on three

comparable sales in the immediate neighborhood of the Middletown property .

Plaintiff's expert testified the property was worth $475,000 based on three

recent sales a tenth of a mile from the Middletown property and accounted for

the increasing market prices of twenty percent due to COVID-19. He conceded,

however, that he did not make a physical inspection of the property and instead

relied on a 2022 Middletown tax assessor's report which assessed the property

at $430,800.

After the close of all the evidence, the court considered post-trial motions,

including plaintiff's motion for reconsideration, entered final judgment and

explained its decision in a series of comprehensive, well-reasoned oral

decisions. The court first determined that plaintiff was lawfully married to

decedent and accordingly had standing to assert her right to an elective share of

the augmented estate under N.J.S.A. 3B:8-1. In making this determination the

court specifically found plaintiff and decedent were not living separate and apart

A-4086-23 5 due to any disharmony but instead as a result of plaintiff's immigration issues

and any separation was not grounds for a claim for nullity or divorce.

The court ascertained the gross estate and in doing so included the: 1)

Middletown property, 2) a vehicle, 3) two TD Bank accounts, 4) two Allianz

annuity contracts, 5) two life insurance policies, and 6) a joint TD brokerage

account and valued it at $826,917.14, and it ascertained a value of $405,000 for

the Middletown property, and in doing so credited the methodology, inspection

report, and testimony of defendant's expert over plaintiff's.

The court excluded the proceeds of the Allianz annuities and life insurance

policies from the probate estate under N.J.S.A. 3B:8-5, because both were

payable to persons other than plaintiff. In doing so it further explained that

both Allianz annuities were "joint annuities . . . payable to a person other than

the surviving spouse" within the meaning of the statute. The two Allianz annuity

contracts list defendant and her son as beneficiaries under one contract and

defendant along with her sister as beneficiaries under the second.

Both contracts are described as "[p]lan type[s] IRA" and each provide an

"[a]nnuitization [v]alue . . . equal to 100% of premium paid, plus the bonus and

any interest earned, minus any reductions caused by applicable charges or

A-4086-23 6 withdrawals . . . ." The contracts' Annuitization Values1 are available to

claimants in the event they wait "until the sixth contract year and then take

annuity payments either for a period of at least [ten] years or for the life of the

annuitant." The contracts further stipulate that upon death of an annuitant, "[t]he

death benefit is equal to the Annuitization Value. The beneficiary may elect to

receive the [d]eath [b]enefit as a lump sum payment or as annuity payments."

(emphasis added).

The record provides that defendant completed a "[f]ixed [a]nnuity [c]laim

[f]orm" in which she elected to claim benefits for the first Allianz contract in

the capacity of an "individual beneficiary." The claim form permits

beneficiaries to elect one of four different benefit options. Option one permits

the beneficiary to "[c]ontinue the existing contract (spousal continuation) –

available for both tax-qualified and non-tax qualified contracts." Option one "is

only available if [claimant is] the beneficiary and the spouse of the deceased

owner under a marriage as defined by state law." This option notes that

qualifying beneficiaries are required to complete an additional section to "name

a new beneficiary." The option further provides that "beneficiaries designated

1 Annuitization values is defined as periodic payments in exchange for a lump- sum account value over a specific timeframe. A-4086-23 7 by the original owner no longer apply, even if you were previously a joint owner.

If you do not designate beneficiaries . . . the death benefit will go to your estate."

Option two, selected by the defendant, permits the election of a "recei[pt

of] a lump-sum payment." This option permits a claimant to either receive the

lump sum "[i]mmediately" or under a "5-year deferral." A claimant choosing

option three is permitted to "receive annuity payments" in five different

variations titled A-E. Under option three, variant A, a claimant can "[r]eceive

payments for a guaranteed period" and "will receive annuity payments for the

guaranteed period selected below" listed under each variant as monthly,

quarterly, semiannually, or annually. Variant B will provide claimants with

annuity payments for the rest of their lives.

Next, variant C provides claimants with "payments for life with a

guaranteed period" and "will receive annuity payments for the rest of [their] life

with a guaranteed payment period" pursuant to their selection of monthly or

other time periods. Variant D, the sole variant not available on all contracts,

permits claimants to "payment of earned interest for a designated period of [five]

or [ten] years." The final variant, E, provides claimants with "payments of a

selected amount until [Allianz has] paid the entire death benefit amount. "

Defendant was also at liberty to choose option four and "[r]eceive payments over

A-4086-23 8 life expectancy" to "receive annual payments based on life expectancy tables in

IRS Publication 590."

The court also deducted from the probate estate funeral, administrative

expenses, and enforceable claims, such as the mortgage, tax liabilities, and

supported repair and maintenance expenses. The court credited the repair and

maintenance expenses as enforceable claims included in the deductions for mold

removal, central air and heat replacement, landscaping, housekeeping, and

carpet repair as they were supported by invoices and associated checks

"admitted into evidence after the [c]ourt reopened the hearing on April 22,

2024." It credited all expenses but refused to deduct other items, however, such

as credit card debts and repairs to defendant's mailbox on her personal property,

as it concluded there were insufficient proofs introduced at trial to support those

expenses.

After applying the aforementioned deductions, the court calculated the

augmented estate at $277,554.06 and plaintiff's one third elective share as

$92,518.02. The court next relied on In re Estate of Cole, 200 N.J. Super. 396

(Ch. Div. 1984), and N.J.S.A. 3B:8-18A, and deducted from the calculated

elective share the joint TD Ameritrade account valued at $70,736.17 as

representing the survivor's own independently acquired property. After this

A-4086-23 9 deduction, the court found the plaintiff was entitled to receive $21,781.85 as her

elective share.

Finally, the court addressed defendant's counterclaims related to alleged

damage to the Middletown property and purported conversion of personal

property. Although the court determined defendant established certain expenses

as enforceable repair expenses for purposes of calculating the augmented estate,

but as to the counterclaim, she failed to provide that plaintiff was the cause of

any alleged damages except for changing the locks after plaintiff left the home

and accordingly awarded $394 for that expense. In conformity with the court's

findings at trial, it entered judgment for plaintiff in the amount of $21,781.85

and for defendant in the amount of $394 and entered a judgment of no cause

with respect to the remaining counterclaims.

Plaintiff moved to amend the judgment and for reconsideration and raised

again her prior claims alleging issues of spoliation and fraudulent concealment.

Defendant cross-moved and sought to amend the judgment to include additional

enforceable claims to be deducted from the $21,781.85 elective share to

$14,806.27, contending that the credit card debts to Capital One and Citi

Advantage "were in fact moved into evidence by the plaintiff" and the court

A-4086-23 10 erred when it did not consider these provable enforceable claims in its

computation of the augmented estate.

Plaintiff also contended there was "no record to show [the] Allianz

annuit[ies are] joint"; "there is a conflict in the record [with respect to]

defendant's appraisal report"; documents enumerating expenses incurred were

allegedly "hearsay," and defendant's testimony "regarding those documents"

rendered "[defendant a] sole benefit for her"; and "the evidence regarding all

th[e] . . . expenses . . . [were] never . . . produced." In response, defendant

maintained the trial proofs established that the annuity contracts are joint

because "beneficiaries become the annuitants when . . . the original annuitant

dies." She also maintained defendant's expert was clearly "more credible", and

although she did not introduce the credit card debts into evidence, they were still

properly before the court as part of plaintiff's evidence and plaintiff's elective

share should have included these debts.

After considering the parties written submissions and oral arguments, the

court denied: (1) plaintiff's motion for reconsideration to include the Allianz

annuities in the augmented estate because they are joint annuities payable to a

person other than the surviving spouse and are exclusions pursuant to N.J.S.A.

3B:8-5, to increase the value of the Middletown property and to exclude post-

A-4086-23 11 death renovations and expenses because defendant's expert "physically assessed

the property" and plaintiff failed to show the court was palpably incorrect; and

(2) its request for a spoliation hearing because the evidence in dispute was not

"material to the [c]ourt's ultimate decision." The court also granted defendant's

cross-motion for reconsideration to include the credit card debts in a calculation

of the augmented estate as the evidence was "in fact introduced into evidence

. . . and should have been considered." The court entered a corresponding order

and reduced plaintiff's elective share from $21,781.85 to $14,806.27.

On appeal, plaintiff raises several arguments. She contends the trial court

erred in excluding the Allianz annuities from the augmented estate, arguing they

were not joint annuities. Plaintiff maintains that the court erred in its

classification of the annuities as joint because decedent was the sole annuitant

named in the contracts. She argues that the Allianz contracts are not joint

because a joint annuitant shares the annuity payments with the primary annuitant

during life and if the primary annuitant dies, then the joint annuitant continues

receiving payments. She maintains that beneficiaries are designated to receive

any remaining annuity benefit after the annuitant's death and do not usually

receive lifetime payments. Pursuant to plaintiff's contentions, she maintains that

A-4086-23 12 the two Allianz annuities in the value of $183,559.63 entitle her to an elective

share in the amount of $61,186.54 with respect to those assets.

In response, defendant argues that the Allianz annuities are clearly joint

annuities as they were payable to a person other than the surviving spouse upon

the death of the annuitant. Defendant further argues that the annuities are joint

and is supported by significant evidence because the benefits of the contract

vested in its beneficiaries. In her reply, plaintiff argues that the Allianz annuities

are both single-life annuities, which pay income to a single annuitant for the

duration of their lifetime, and not a joint annuity, which pay income to two

people for as long as either one is alive.

Plaintiff also contends that the court improperly valued the Middletown

property. Specifically, she maintains that the court's ascertained value of the

property was based upon defendant's conflicting testimonies and that the court

failed to make any credibility findings with respect to defendant's description of

the home and thus, the defendant's expert's appraisal was inaccurate. Plaintiff

further argues that the court erred in allowing deductions for post-death

remediation of the Middletown property, in admitting certain documents the

defendant allegedly concealed in justifying the renovation costs for the home.

Plaintiff also argues that the court erred in not applying a spoliation inference

A-4086-23 13 with respect to documents related to the renovation costs and Allianz contracts

alleging that defendants did not disclose these documents during discovery and

intentionally withheld them. We reject all of plaintiff's arguments.

II.

We begin with the established standard of review in an appeal from a

bench trial. "The scope of [our] review of a trial court's fact-finding function is

limited." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)

(quoting Cesare v. Cesare, 154 N.J. 394, 411 (1998)). We review a trial court's

factual findings "premised on the testimony of witnesses and written evidence

at a bench trial, in accordance with a deferential standard." D'Agostino v.

Maldonado, 216 N.J. 168, 182 (2013). "We are not to review the record from

the point of view of how we would have decided the matter if we were the court

of first instance." Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App.

Div. 2002). "Factual findings premised upon evidence admitted in a bench trial

'are binding on appeal when supported by adequate, substantial, credible

evidence.'" Potomac Ins. Co. of Ill by OneBeacon Ins. Co. v. Pa. Mfrs.' Ass'n

Ins. Co., 215 N.J. 409, 421 (2013) (quoting Cesare, 154 N.J. at 411-12). Further,

we "defer to the credibility determinations made by the trial court because the

trial judge 'hears the case, sees and observes the witnesses, and hears them

A-4086-23 14 testify,' affording it 'a better perspective than a reviewing court in evaluating the

veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting

Cesare, 154 N.J. at 412).

"'Only when the trial court's conclusions are so "clearly mistaken" or

"wide of the mark"' should we interfere to 'ensure that there is not a denial of

justice.'" Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88,

104 (2008)). However, we review de novo the "trial court's interpretation of the

law and the legal consequences that flow from established facts." D'Agostino,

216 N.J. at 182-83 (quoting Treatments Manalapan Realty, LP v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995)).

A trial court has "broad discretion in determining the relevance of

evidence." Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). We do not overturn a

trial court's evidentiary rulings "unless it can be shown that the trial court

palpably abused its discretion." See ibid. (quoting Green v. N.J. Mfrs. Ins. Co.,

160 N.J. 480, 492 (1999)). "It [i]s within the trial court's wide discretion to

accept or reject an expert's testimony, either in whole or in part." Sipko v.

Koger, Inc., 251 N.J. 162, 188 (2022). The judge, as factfinder, "must weigh

and evaluate the experts' opinions, including their credibility, to fulfill the

judge's responsibility in reaching a reasoned, just and factually supported

A-4086-23 15 conclusion." Pansini Custom Design Assocs., LLC v. City of Ocean City, 407

N.J. Super. 137, 144 (App. Div. 2009). "The court need not give the expert's

opinion 'greater weight than other evidence [ ]or more weight than it would

otherwise deserve in light of common sense and experience.'" E&H Steel Corp.

v. PSEG Fossil, LLC, 455 N.J. Super. 12, 29 (App. Div. 2018) (quoting Torres

v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)).

The intent of N.J.S.A. 3B:8-1, "was to prohibit disinheritance of a

surviving spouse who needs continuous support." In re Est. of Brown, 448 N.J.

Super. 252, 269 (App. Div. 2017). "[T]he spousal elective share 'provides a kind

of statutory safety net to . . . a surviving spouse.'" L.G. v. Dep't of Hum. Servs.,

386 N.J. Super. 282, 290 (App. Div. 2006) (quoting In re Est. of Friedlein, 230

N.J. Super. 100, 105 (App. Div. 1989)). It "provide[s] a surviving spouse with

an option to take one-third of the estate if he or she were not adequately provided

for by the decedent.'" Est. of Brown, 448 N.J. Super. at 269-70 (quoting In re

Est. of Hersh, 195 N.J. Super. 74, 77 (App. Div. 1984)).

The elective share equals "one-third of the augmented estate," N.J.S.A.

3B:8-1, and "[t]he augmented estate consists of the value of all property of both

the deceased and surviving spouse as well as other property transferred to third

parties without adequate consideration before the decedent's death." I.G., 386

A-4086-23 16 N.J. Super. at 290 (internal quotations omitted) (quoting Friedlein, 230 N.J.

Super. at 104). However, "any life insurance . . . joint annuity or pension

payable to a person other than the surviving spouse or domestic partner" shall

"be excluded from the augmented estate." N.J.S.A. 3B:8-5.

"An annuity is a contract between an issuer, usually an insurance

company, and an owner under which the owner purchases the right to receive

periodic payments for a fixed term or for the life of the annuitant." 8 Jeffrey E.

Thomas, New Appleman on Insurance Law Library Edition § 91.01 (2013) (first

citing Lander v. Hartford Life & Annuity Ins. Co, 251 F.3d 101, 104-105 (2d

Cir. 2001); In re Rhinebolt, 131 B.R. 973 (Bankr. S.D. Ohio 1991) ("An annuity

. . . is an obligation by a person or a company to pay to the annuitant a certain

sum of money at stated times during life or a specified number of years, in

consideration of a gross sum paid for such obligation"); and then citing Boykin

v. Law, 946 So. 2d 838 (Ala. 2006) (quoting Turrentine v. Perkins, 46 Ala. 631

(1871)) ("An annuity is a yearly sum stipulated to be paid to another in fee, or

for life, or years . . . .")). In fact, the Supreme Court has defined an annuity as

"an amount payable yearly or at other regular intervals . . . for a certain or

uncertain period (as for years, for life, or in perpetuity)." Rousey v. Jacoway,

A-4086-23 17 544 U.S. 320, 330 (2005) (citing J. Langbein & B. Wolk, Pension and Employee

Benefit Law, 48 (3d ed. 2000)).

In addition, the Eleventh Circuit Court of Appeals, referenced Black's Law

Dictionary and defined an annuity as "[a] right to receive fixed, periodic

payments, either for life or for a term of years." In re McCollam, 986 F.2d 436,

438 (1993) (citing Black's Law Dictionary 90 (6th ed. 1990)); see also Black's

Law Dictionary 1000 (12th ed. 2024) (providing that to be considered joint, the

subject must be "common to or shared by two or more persons or entities."). The

court also noted other courts "defined an annuity as 'a yearly payment of a

certain sum of money granted to another in fee for life or for years . . . in its

broader sense it designates a fixed sum . . . payable periodically, at aliquot parts

of a year, at stated intervals, and not necessarily annually.'" In re McCollam,

986 F.2d at 348 (citing In re Gefen, 35 Bankr. 368, 371 (Bankr. S.D. Fla. 1984)).

III.

We are convinced the court correctly concluded that the Allianz contracts

are joint annuities. We acknowledge plaintiff's arguments that there is a

fundamental difference between a beneficiary and a joint annuitant and a

beneficiary is most often mentioned in the context of life insurance policies.

The "fundamental differences between annuities and life insurance lie in the

A-4086-23 18 benefit and timing of each. A life insurance policy is intended to provide

financial protection to a beneficiary who suffers harm as a result of the death of

the insured. Life insurance protects against the risk of mortality." New

Appleman on Insurance Law Library Edition § 91.01[2]. As noted, an "annuity,

on the other hand, is intended to provide income to the annuitant during the

lifetime of the annuitant. An annuity typically provides a stream of monthly or

lump sum payments." Id. (citing Klein v. Am. Life & Cas. Co., 858 So. 2d 527

(La. Ct. App. 2003)).

The Allianz contracts are clearly annuities because they permit claimants

to receive a lump sum or periodic payments in separate installments consistent

with the Supreme Court's definition of an annuity. See Jacoway, 544 U.S. at

330; see also In re McCollam, 986 F.2d at 482. Furthermore, as the court

concluded, the Allianz contracts are correctly characterized as joint annuities

because they permit the substitution of the first annuitant, the decedent, with a

second annuitant at a claimant's election. In addition, the shared nature of the

annuity benefits between decedent and defendant evinces a joint annuity. Thus,

the court appropriately excluded the Allianz contracts because joint annuities

are excluded from the augmented estate when, as here, the benefits are payable

to a person other than the surviving spouse. See N.J.S.A. 3B:8-5.

A-4086-23 19 We are satisfied that this finding is supported by the evidence and

consistent with IRS guidance defining a joint annuity as one in which the first

annuitant receives payments for life, and after their death, a second annuitant

receives payments for life.2 As noted, the Allianz contracts expressly permit

defendant to step into the shoes of the decedent and receive annuity payments

for the remaining period of the contract. Pursuant to defendant's election to

serve as a second annuitant, Allianz would have remained obligated to provide

payments to defendant until the decedent's entire death benefit had been paid

out under the claim form's option three variant A.

We acknowledge defendant elected to receive a lump sum payment under

the contracts, but her ability to become a second annuitant and receive payments

for the remaining period of the contracts remained an option under the claim

form's option three variant A as noted, and which supports the court's

characterization of the Allianz contracts as joint annuities. We also note that

plaintiff has provided no legal support for the proposition that a joint annuity

2 See Publication 575 (2025), Pension and Annuity Income, IRS, https://www.irs.gov/publications/p575#en_US_2025_publink1000226693 (defining joint and survivor annuitants where "[t]he first annuitant receives a definite amount at regular intervals for life. After they die, a second annuitant receives a definite amount at regular intervals for life. The amount paid to the second annuitant may or may not differ from the amount paid to the first annuitant."). A-4086-23 20 and a joint annuitant exist only in the instance that they share annuity payments

with the primary annuitant during their lifetime.

As noted by the court, if the annuity was a single life annuity it would not

provide the decedent with the ability to appoint a beneficiary. In such a case,

the annuity and any outstanding value would be included within the estate.

Instead, here, the annuity's contractual provisions expressly permit the

beneficiaries to elect to "receive annuity payments" for a selected period

between five and thirty years in monthly, quarterly, semiannual, or annual

payments. Plaintiff inaccurately reads the Allianz contracts as they in fact

provide the beneficiaries with options to either step into the shoes of the original

annuitant as a second annuitant or to receive a lump sum payment. For these

reasons, we are satisfied the court appropriately concluded that the Allianz

annuity contracts were joint and that they were excludable from the augmented

estate pursuant to N.J.S.A. 3B:8-5 as they were payable to a person other than

the surviving spouse.

A-4086-23 21 IV.

Next, we discern no error in the court's decision to accept defendant's

expert's opinion and methodology with respect to the value of the Middletown

property as opposed to plaintiff's, or in admitting his report. See State v.

McGuire, 419 N.J. Super. 88, 123 (App. Div. 2011). "The qualifications of an

expert and the admissibility of opinion or similar expert testimony are matters

left to the discretion of the [court]." Ibid. (citing State v. Torres, 183 N.J. 554,

572 (2005)).

Here, the court's discretionary credibility-based decision is entitled to our

deference and is fully grounded in the record. Indeed, the court specifically

found "defendant's expert report to be more credible" because "[d]efendant's

expert . . . physically assessed the property." See Gnall, 222 N.J. at 428 (quoting

Cesare, 154 N.J. at 412) (this court "defer[s] to the credibility determinations

made by the trial court because the trial judge 'hears the case, sees and observes

the witnesses, and hears them testify,' affording it 'a better perspective than a

reviewing court in evaluating the veracity of a witness.'"). We have no basis to

deviate from the court's determination.

A-4086-23 22 V.

Similarly, we are satisfied the court did not err in allowing deductions for

post-death expenses, as these costs were supported by the evidence and found

to be enforceable claims. Specifically, the court identified the various post-

death invoices for mold removal, central air and heat replacement, landscaping,

housekeeping, and carpet repair. The court, in addressing defendant's

counterclaims, explained it expressly limited its deductions to which defendant

could establish were either enforceable repair expenses or damage caused by

plaintiff's actions. In light of plaintiff's extensive cross-examination of

defendant with respect to the incurred expenses, we are satisfied the court

correctly relied on the submitted invoices to support the post-death renovation

expenses in its computation of the augmented estate.

Furthermore, we reject plaintiff's arguments that the remediation of the

property was solely to benefit defendant and her son, because, as the court noted,

the repair costs to the estate's Middletown property "were incurred for legitimate

reasons . . . defendant paid them . . . and . . . did so in her fiduciary capacity as

executrix of decedent's estate." As supported by defendant's expert's testimony

and credited by the court in its final evaluation of the property, the post -death

A-4086-23 23 renovations were required to ensure the property remained "livable by today's

standards."

VI.

Finally, the court also properly rejected plaintiff's arguments regarding

spoliation and concealment, finding no basis to conclude that any relevant

evidence was destroyed or withheld so as to impede plaintiff's ability to litigate

the case and thus are convinced the court did not commit any error when it

denied plaintiff's request to apply an adverse inference charge based upon

defendant's alleged spoliation of evidence. "Spoliation typically refers to the

destruction or concealment of evidence by one party to impede the ability of

another party to litigate a case." Jerista v. Murray, 185 N.J. 175, 201 (2005)

(citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001)). Our courts have

expanded the remedies available to courts dealing with spoliating parties by

permitting the use of discovery sanctions and adverse inferences and have

authorized courts to use more than one such remedy if circumstances warrant it.

Robert Flavors, Inc. v. Tri-Form Constr., Inc., 203 N.J. 252, 272 (2015)

(citations omitted).

Whether a duty exists to preserve the evidence in the first instance is a

question of law to be resolved by the court. Davis v. Barkaszi, 424 N.J. Super.

A-4086-23 24 129, 148 (App. Div. 2012) (citing Cockerline v. Menendez, 411 N.J. Super. 596,

620 (App. Div. 2010)), cert. denied, 201 N.J. 499, 992 (2010). The duty "arises

when there is pending or likely litigation between two parties, knowledge of this

fact by the alleged spoliating party, evidence relevant to the litigation, and the

foreseeability that the opposing party would be prejudiced by the destruction or

disposal of this evidence." Cockerline, 411 N.J. Super. at 620. Based on our

review of the record, we are satisfied that the court correctly dismissed plaintiff's

request to apply an adverse inference charge as the evidence in dispute was

neither concealed nor destroyed and did not impede plaintiff's ability to litigate

the case.

In sum, we are satisfied the trial court's decision was grounded in its

findings that the Allianz annuities were joint annuities payable to persons other

than the surviving spouse and thus excluded them from the augmented estate

under N.J.S.A. 3B:8-5. As noted, the court accepted defendant's expert's

appraisal of the real property, found the claimed post-death expenses to be

enforceable claims, and rejected plaintiff's arguments regarding spoliation and

concealment. The court's oral and written decisions reflect a careful

consideration of the evidence and the applicable law. To the extent we have not

addressed a particular argument, it is because either our disposition makes it

A-4086-23 25 unnecessary, or the argument was without sufficient merit to warrant discussion

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

Affirmed.

A-4086-23 26