In the Matter of the Estate of Olga Kolbik

• Court: New Jersey Superior Court Appellate Division
• Decided: January 12, 2026
• Docket: A-0782-24
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0782-24

IN THE MATTER OF THE ESTATE OF OLGA KOLBIK, deceased. _________________________

Submitted October 28, 2025 – Decided January 12, 2026

Before Judges Sumners and Augostini.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. P- 282131.

The Law Office of Robert Nisenson, LLC, attorneys for appellants Sofia Kolbik and Estate of Olga Kolbik (Robert C. Nisenson, on the briefs).

Larisa Kolbik, self-represented respondent.

PER CURIAM

This will contest involves the decedent Olga Kolbik's change to her will,

removing one of her two daughters, plaintiff Larisa Kolbik,1 as a beneficiary of

1 Because the parties share a surname, we refer to them by their first names and intend no disrespect by doing so. her estate. Larisa filed an action seeking to set aside her mother's 2016 will,

contending it was not properly executed. Olga's other daughter, defendant Sofia

Kolbik, was named as the executor and sole beneficiary of Olga's estate.

Following a bench trial, the court entered a July 17, 2024 judgment in favor of

Larisa, invalidating the 2016 will as the product of undue influence by Sofia,

and granting Larisa's request to have the 2002 will probated.

Sofia appeals from the final judgment and from the November 7, 2024

order denying her motion for a new trial. She contends the trial court erred

factually and legally in finding undue influence—a claim not pled by Larisa in

her complaint—as the basis to invalidate the 2016 will, and further asserts that

the court erred by not granting a new trial to afford her an opportunity to respond

to the undue influence claim. Because Sofia was not given adequate notice of

the undue influence claim, the court's factual findings were inadequate, and it

erred in its legal conclusions, we vacate the final judgment and remand for a

new trial for the reasons that follow.

I.

A one-day bench trial was held on May 28, 2024, revealing the following

facts.

A-0782-24 2 Olga passed away on March 5, 2023. She had two daughters, Larisa and

Sofia. In 2002, Olga executed a last will and testament, dividing her estate

equally between her daughters.

In 2006, Larisa purchased a home against the advice of her mother, who

was concerned about Larisa's ability to afford a home. Approximately a year

later, Larisa experienced financial difficulties, and without Olga's consent,

withdrew a substantial sum of money from her mother's account. Upon

receiving the account's annual statement, Olga learned of the unauthorized

withdrawal. According to Sofia, Olga was "distraught" and "could not

understand [why] her daughter [w]ould do this to her." Larisa did not return the

funds to her mother.

In 2015, Larisa needed money again because her home was in foreclosure.

In January 2015, Olga distributed bonds to her daughters she had purchased.

The maturation dates of the bonds varied. Because Larisa needed money , Sofia

offered to exchange the bonds given to her that had already matured for ones

given to Larisa that had not yet matured. According to Sofia, the redeemed

value of the matured bonds was $135,698. Larisa agreed to sign over the bonds

to Sofia once they matured in 2017.

A-0782-24 3 Since 2006, Olga and Larisa's relationship was strained. In May 2016,

Olga contacted Larisa to see if she would be coming for Easter, to which Larisa

stated she would not. However, Sofia testified that Larisa "showed up, hardly

spoke to anybody, [and] left shortly thereafter." Larisa did not show up the

following weekend for Mother's Day.

Sofia testified that after that weekend, Olga asked her to "call my lawyer,"

to change her will. Sofia testified that she did not immediately contact the

attorney; however, on her next visit to her mother's home, Olga's "first words"

to her were "did you call the lawyer?" Olga requested that Sofia "go right now

and call the lawyer." She contacted Robert Rafano, Esq., who had drafted Olga's

2002 will, and scheduled an office appointment.

On May 12, 2016, Rafano met with Olga and Sofia in his office to discuss

creating a new will. Rafano testified that Olga explained that she had "done

things for [Larisa] during her lifetime and she would be taken care of[;]"

therefore, she wanted to "eliminate Larisa from [her] will." Rafano testified that

he was able to communicate with Olga.

Five days later, Rafano prepared a memo to the file, memorializing the

May 12, 2016 meeting with Olga and noted these recommendations:

I advised them to have her examined by a doctor since she is [ninety] years old and there may be a contested

A-0782-24 4 case of her [w]ill and also suggested that they have a Russian interpreter here, a person or friend who speaks Russian so that I can review this in detail with her not having to use the daughter as an interpreter.

Rafano sent Olga a copy of the draft will on May 17, 2016.

Approximately two weeks later, Olga returned to Rafano's office to execute the

will. Rafano testified that he reviewed the will again with Olga before it was

signed. Concerning Larisa, the will stated:

SECOND: I recognize the existence of my daughter, Larisa Kolbik, (capitalization modified) and direct that she not share in the proceeds of my estate in any way. She has received benefits from my assets during my lifetime.

Rafano testified that Olga fully understood the terms of the will and it was

properly witnessed and executed.

On cross-examination, Rafano acknowledged that he accepted a note

dated May 16, 2016 from Olga's cardiologist, Dr. Y.M. Lawrence Chai,

confirming that on her last visit, January 15, 2016, Olga "was her normal self

and appeared competent to make decisions." According to Dr. Chai, Olga has

"made appropriate decisions to various medical issues that have come up over

the last [twelve] years."

Rafano explained that although he was "satisfied that she was competent,"

he thought a medical examination by the doctor "would be helpful" given Olga's

A-0782-24 5 age. Nonetheless, once he reviewed Dr. Chai's note, Rafano was "satisfied with

what [he] received" and did not request further evaluation. Rafano did not hear

back from Olga after completing the 2016 will.

On July 17, 2024, the court issued a final judgment, finding the 2016 will

subject to undue influence, probating the 2002 will, turning over the thirty bonds

to Sofia,2 and denying Larisa's request for compensatory damages. In its written

statement of reasons, the court inferred from the evidence that Olga and Sofia

had a confidential relationship, finding that:

her presence with Mr. Rafano when the [w]ills which he prepared both in 2002 and 2016 suggest strongly that undue influence over decedent affected decedent's testamentary dispositions, even though decedent apparently had become estranged from Larisa by virtue of Larisa's conduct for some time.

As a result, the court shifted the burden of proof to Sofia to rebut the

presumption of undue influence. It determined that "Sofia ha[d] not met her

burden of proof to show by clear and convincing evidence the absence of

suspicious circumstances."

Following the court's decision, Sofia filed a motion for a new trial, arguing

that the lack of notice of undue influence in the pleadings deprived her of the

2 The provision of the July 17, 2024 order pertaining to the turnover of the thirty bonds is not being challenged on appeal. A-0782-24 6 opportunity to present evidence to refute the undue influence claim. In denying

the motion for a new trial, the court, citing Jorden v. Reed, 77 N.J.L. 584 (E. &

A. 1908), noted the "variance between pleadings and the evidence at trial is of

no great consequence." The court also pointed out that no objection to the

evidence supporting undue influence was made at trial. This appeal followed.

II.

Our standard of review of a judgment following a bench trial is well-

settled. "The trial court's factual findings are entitled to deference on appeal so

long as they are supported by sufficient credible evidence in the record."

Accounteks.Net, Inc. v CKR Law, LLP, 475 N.J. Super. 493, 503 (App. Div.

2023) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474,

483-84 (1974)). Although the court's credibility determinations are entitled to

deference, the "trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference" and

are reviewed de novo on appeal. Rowe v. Bell & Gossett Co., 239 N.J. 531, 552

(2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995)).

A-0782-24 7 A.

We first address Sofia's contention that she was deprived notice of the

claim for undue influence because it was not pled in the complaint. A complaint

alleging undue influence, "must on its face[] satisfy the requirements of Rule

4:5-8." State, Dep't of Treasury, Div. of Inv. ex rel. McCormac v. Qwest

Commc'ns Intern, Inc., 387 N.J. super. 469, 484 (App. Div. 2006). "The

heightened [undue influence] pleading requirements set forth in the Rule provide

the 'particulars of the wrong, with dates and items if necessary, shall be stated

insofar as practicable.'" Ibid. (quoting R. 4:5-8(a)). Failure to state such

allegations with requisite particularity may be grounds for dismissal of the

claim. Ibid.

A will contestant has the burden of proving undue influence unless "the

will benefits one who stood in a confidential relationship to the testatrix and

there are additional circumstances of a suspicious character present which

require explanation." In re Will of Rittenhouse, 19 N.J. 376, 378-79 (1955).

"When there is a confidential relationship coupled with suspicious

circumstances, undue influence is presumed and the burden shifts to the will

proponent to overcome the presumption." In re Est. of Folcher, 224 N.J. 496,

512 (2016) (quoting In re Est. of Stockdale, 196 N.J. 275, 303 (2008)). Undue

A-0782-24 8 influence exists when "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." Stockdale, 196 N.J. at 302-03.

There is no dispute that Larisa's complaint did not allege undue influence

by Sofia. Larisa contends she posed the question of undue influence in one of

her interrogatories and raised it substantively for the first time in her trial brief

submitted shortly before trial. However, Larisa did not seek to amend her

complaint to include this claim. Indeed, during trial, she admitted that when she

filed her complaint, she "didn't really know anything about it." Moreover, after

she raised it in her pre-trial submission, she did not provide any specific

allegations of undue influence her sister may have had over their mother;

instead, she generally asserted her belief that Sofia "had more influence over

[their] mother." Nor did Larisa call any witnesses to show Olga's susceptibility

to Sofia's influence.

The lack of notice in Larisa's complaint deprived Sofia of the opportunity

to conduct discovery relevant to this claim and to properly prepare and present

a defense to this allegation. This notice deficiency was particularly prejudicial

A-0782-24 9 because the trial court shifted the burden to Sofia of showing "by clear and

convincing evidence" the absence of suspicious circumstances.

Based on our de novo review, we conclude that the lack of notice not only

fails to satisfy the "heightened" pleading requirements of Rule 4:5-8, but more

fundamentally, fails to satisfy essential components of due process—"notice of

the nature of the proceeding and a fair opportunity to be heard therein." Borough

of Keyport v. Maropakis, 332 N.J. Super. 210, 221 (App. Div. 2000) (quoting

Weiner v. County of Essex, 262 N.J. Super. 270, 287 (Law Div. 1992)).

B.

For completeness, we address Sofia's additional contentions that the trial

court erred factually and legally in finding undue influence. The first issue to

be determined by the court was whether Sofia and Olga had a confidential

relationship. Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (1981). The

court determined that:

[t]he evidence clearly shows that a confidential relationship existed between Sofia and decedent, child and parent, beyond the close biological connection. Sofia was decedent[']s primary caretaker. Larisa and decedent had not spoken for a number of years prior to 2023. Her presence with Mr. Rafano when the [w]ills which he prepared both in 2002 and 2016 suggest strongly that undue influence over decedent affected decedent's testamentary dispositions, even though

A-0782-24 10 decedent apparently had become estranged from a Larisa by virtue of Larisa's conduct for some time.

The trial court next addressed suspicious circumstances:

Sofia testified that the relationship between Larisa and decedent had been 'extremely strained' since 2006, when Larisa apparently withdrew $104,000 from decedent's bank accounts. Physical contact between decedent and Larisa had been limited; when Larisa failed to visit decedent on Mother's Day 2016, decedent decided to call Mr. Rafano. The facts leading to decedent's alienation with Larisa justifies the characterization of the circumstances regarding the 2016 will as 'suspicious' in accordance with Haynes, 87 N.J. at 163 and Rittenhouse, [19 N.J. at 379] [Sofia] did not meet her revised burden of proof to show by clear and convincing evidence the absence of suspicious circumstances.

We recognize that "parent-child relationships [are] 'among the most

natural of confidential relationships,' it has also been held that the 'mere

existence of family ties does not create . . . a confidential relationship.'" Est. of

Ostlund v. Ostlund, 391 N.J. Super. 390, 401 (App. Div. 2007) (citing Vezzetti

v. Shields, 22 N.J. Super. 397, 405 (App. Div. 1952)). "[T]he test for measuring

the existence of a confidential relationship is 'whether the relations between the

parties are of such a character of trust and confidence as to render it reasonably

certain that the one party occupied a dominant position over the other and that

consequently they did not deal on terms and conditions of equality.'" Ibid.

A-0782-24 11 (quoting Blake v. Brennan, 1 N.J. Super. 446, 454 (Ch. Div. 1948)). In other

words, a confidential relationship "exists when the circumstances make it certain

that the parties do not deal on equal terms." Ibid. (quoting Stroming v.

Stroming, 12 N.J. Super. 217, 224 (App. Div. 1951)).

In the present case, the court's findings that Sofia was Olga's primary

caregiver and that Larisa and Olga were alienated from one another does not

adequately support the finding of a confidential relationship between Olga and

Sofia. See R. 1:7-4(a); Haynes, 87 N.J. at 175-76 ("'Undue influence' has been

defined as 'mental, moral or physical' exertion which has destroyed the 'free

agency of a testator'"). However, even assuming a confidential relationship

between Olga and Sofia existed, before "undue influence is presumed and the

burden of proof shifts to the will proponent to overcome the presumption,"

Folcher, 224 N.J. at 512 (quoting Stockdale, 196 N.J. at 303), the trial court had

to find suspicious circumstances surrounding Sofia being named sole

beneficiary of her mother's estate. The court described that, "[t]he facts leading

to decedent's alienation with Larisa justifies the characterization of the

circumstances regarding the 2016 will as 'suspicious.'" In light of the record,

we conclude that these findings, without more, do not support the trial court's

conclusion of suspicious circumstances.

A-0782-24 12 Although evidence of suspicious circumstances may be "slight," the will

contestant must present "additional circumstances of a suspicious character []

which require explanation." Rittenhouse, 19 N.J. at 378-79. Here, the

circumstances that led to the change in Olga's testamentary disposition were

undisputed and needed no further explanation; Larisa "received benefits from

[Olga's] assets during [her] lifetime," namely, a withdrawal of approximately

$104,000 from Olga's accounts. It is also undisputed that Larisa never offered

to repay these monies; a position the trial court found "incredible." In terms of

credibility, the court found Sofia highly credible, while Larisa's answers "were

less than fully responsive." Despite the court's credibility and factual findings,

it failed to adequately explain why it found these circumstances "suspicious."

Without adequate findings of both a confidential relationship and

suspicious circumstances, the trial court erred in shifting the burden to Sofia to

prove that the 2016 will was not the product of undue influence. Moreover, the

court incorrectly applied the higher legal standard of clear and convincing

evidence to Sofia's obligation to show the absence of suspicious circumstances.

Had the record supported both the establishment of a confidential relationship

and suspicious circumstances, warranting burden shifting to Sofia, she would

have had to prove, by a preponderance of the evidence, that the 2016 will was

A-0782-24 13 not the product of undue influence. Folcher, 224 N.J. at 512 (finding the burden

of proof can be overcome based on proof of no undue influence by a

preponderance of the evidence). The trial court offered no explanation as to

why the heavier burden of clear and convincing evidence was applied in this

case. Cf. Haynes, 87 N.J. at 185.

In sum, we are satisfied that the lack of adequate notice of a claim of

undue influence deprived Sofia of a fair hearing. We also conclude the trial

court failed to adequately state its factual findings to support a confidential

relationship and the existence of suspicious circumstances surrounding the 2016

will. Further, the trial court erred in its legal conclusions by requiring Sofia to

prove by clear and convincing evidence no undue influence. Because we vacate

the July 17, 2024 final judgment and remand for a new hearing, we need not

reach the issue of whether the court erred in denying Sofia a new trial.

Considering the trial court made credibility findings, the matter should be

remanded to a different trial court. See P.T. v. M.S., 325 N.J. Super. 193, 220-

221 (App. Div. 1999); see also R. 1:12-1.

Vacated and remanded for a new hearing before a different trial court. We

do not retain jurisdiction.

A-0782-24 14