NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3620-21
IN THE MATTER OF THE ESTATE OF VICTOR WASOWICZ,
Deceased.
Submitted October 23, 2023 – Decided November 21, 2023
Before Judges Marczyk and Vinci.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 277224.
J. Lynn DeGillo, appellant pro se.
Respondent Estate of Victor Wasowicz has not filed a brief.
PER CURIAM
In this one-sided appeal, plaintiff pro se J. Lynn DeGillo appeals from the
trial court's June 7, 2022 order dismissing her complaint with prejudice. Based
on our review of the record and the applicable legal principles, we affirm . From 1971 to 1987, decedent Victor Wasowicz had a relationship with
plaintiff's mother, though they never married. Plaintiff asserts she developed a
close "father [] daughter" type relationship with decedent. In 1987—after
decedent's relationship with plaintiff's mother ended—plaintiff unexpectedly
bumped into decedent in the parking lot of a supermarket. Plaintiff alleges
decedent told her he wanted her to have everything he owned in exchange for
plaintiff promising she would take care of her mother and planting a tree in his
memory. Plaintiff contends they "formed an oral agreement contract . . . akin to
a will." However, there was no action taken to memorialize the contract
because, according to plaintiff, decedent "was a practical man; a dutiful man; a
man who detested lawyers and believed 'the system' to be greedy . . . ."
Decedent passed away intestate in 2022. Decedent's estate was to be
divided between his two intestate heirs. However, plaintiff filed suit against the
estate, arguing she was the only person entitled to decedent's estate because of
their oral agreement in 1987—thirty-five years earlier. Plaintiff also objected
to the division of the assets on the basis that she believed there to be no living
descendants of decedent's brother.
At the hearing in June 2022, the trial court denied plaintiff's motion to
transfer the matter to the Civil Part of the Law Division. The court noted, "this
A-3620-21 2 is a [p]robate matter . . . that would only be appropriate for the Probate Court
. . . ." In an order dated June 7, 2022, the trial court dismissed plaintiff's
complaint with prejudice because plaintiff lacked standing, as she was not
biologically or legally related to decedent. The trial court also noted that even
if plaintiff had standing, her contention there was an oral will is inconsistent
with N.J.S.A. 3B:3-2(a)(1). Furthermore, because plaintiff lacked standing and
was not an interested party concerning decedent's intestate estate, the court
declined to address plaintiff's argument that the court-appointed attorney for the
estate had incorrectly identified decedent's nieces as the intestate heirs. This
appeal followed.
Plaintiff alleges the trial court erred in dismissing her complaint for lack
of standing. She further argues the court misinterpreted her breach of contract
claim and that the court failed to properly consider the standard for dismissal
under Rule 4:6-2. More particularly, plaintiff relies on Ballard v. Schoenberg,
224 N.J. Super. 661 (App. Div. 1988), for the proposition she and decedent
entered into an enforceable oral contract and that she was entitled to his intestate
estate.1
1 Plaintiff also relies on In re Estate of Roccamonte, 174 N.J. 381 (2002). That matter involved a palimony case which is unrelated to the claims in this matter. A-3620-21 3 Our review of orders that dismiss claims for lack of standing is de novo.
Courier-Post Newspaper v. Cnty. of Camden, 413 N.J. Super. 372, 381 (App.
Div. 2010). We also review a motion to dismiss for failure to state a claim upon
which relief can be granted under Rule 4:6-2(e) de novo. Baskin v. P.C. Richard
& Son, LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus,
Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). "A
reviewing court must examine 'the legal sufficiency of the facts alleged on the
face of the complaint,' giving the plaintiff the benefit of 'every reasonable
inference of fact.'" Ibid. (quoting Dimitrakopoulos, 237 N.J. at 107). Courts
should search the complaint thoroughly "and with liberality to ascertain whether
the fundament of a cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if necessary." Ibid.
(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989)). But "if the complaint states no claim that supports relief, and discovery
will not give rise to such a claim, the action should be dismissed." Ibid. (quoting
Dimitrakopoulos, 237 N.J. at 107).
Plaintiff essentially advances two claims regarding the nature of the
agreement with decedent. Her primary claim is that she had a contract with
decedent—distinct from a will. She also argues, however, her agreement with
A-3620-21 4 decedent was "akin to a will." The trial court viewed plaintiff's argument
regarding the contract as "a will in disguise." We address both contentions
below.
To the extent plaintiff asserts her agreement with decedent was akin to a
will or an oral will, we note under New Jersey law:
[A] will shall be:
(1) in writing;
(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
[N.J.S.A. 3B:3-2(a)(1)-(3).]
The term "'will' . . . includes every species of testamentary act, which takes its
effect from the mind of the testator, requiring a sound and disposing mind and
capacity, and manifested by the proper execution of an instrument in writing
. . . ." In re Est. of Sapery, 28 N.J. 599, 607 (1959) (emphasis added). Here,
plaintiff argues decedent made an oral contract—akin to a will—to devise
everything he owns to her upon his death. However, it is undisputed there is no
A-3620-21 5 evidence of any written will, let alone a document signed by decedent related to
the purported promise. Accordingly, the trial court did not err in finding there
was no valid claim asserted based on any oral will.
We now turn to plaintiff's primary argument that her agreement with
decedent was not a will, but rather an oral contract. The trial court did not
squarely address this argument. Although we agree with the court that plaintiff's
complaint should have been dismissed, we do so, in part, for a different reason
noted below.2
Plaintiff argues the trial court erred in dismissing her complaint for lack
of standing based on her oral agreement with decedent in which he promised to
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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-3620-21
IN THE MATTER OF THE ESTATE OF VICTOR WASOWICZ,
Deceased.
Submitted October 23, 2023 – Decided November 21, 2023
Before Judges Marczyk and Vinci.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 277224.
J. Lynn DeGillo, appellant pro se.
Respondent Estate of Victor Wasowicz has not filed a brief.
PER CURIAM
In this one-sided appeal, plaintiff pro se J. Lynn DeGillo appeals from the
trial court's June 7, 2022 order dismissing her complaint with prejudice. Based
on our review of the record and the applicable legal principles, we affirm . From 1971 to 1987, decedent Victor Wasowicz had a relationship with
plaintiff's mother, though they never married. Plaintiff asserts she developed a
close "father [] daughter" type relationship with decedent. In 1987—after
decedent's relationship with plaintiff's mother ended—plaintiff unexpectedly
bumped into decedent in the parking lot of a supermarket. Plaintiff alleges
decedent told her he wanted her to have everything he owned in exchange for
plaintiff promising she would take care of her mother and planting a tree in his
memory. Plaintiff contends they "formed an oral agreement contract . . . akin to
a will." However, there was no action taken to memorialize the contract
because, according to plaintiff, decedent "was a practical man; a dutiful man; a
man who detested lawyers and believed 'the system' to be greedy . . . ."
Decedent passed away intestate in 2022. Decedent's estate was to be
divided between his two intestate heirs. However, plaintiff filed suit against the
estate, arguing she was the only person entitled to decedent's estate because of
their oral agreement in 1987—thirty-five years earlier. Plaintiff also objected
to the division of the assets on the basis that she believed there to be no living
descendants of decedent's brother.
At the hearing in June 2022, the trial court denied plaintiff's motion to
transfer the matter to the Civil Part of the Law Division. The court noted, "this
A-3620-21 2 is a [p]robate matter . . . that would only be appropriate for the Probate Court
. . . ." In an order dated June 7, 2022, the trial court dismissed plaintiff's
complaint with prejudice because plaintiff lacked standing, as she was not
biologically or legally related to decedent. The trial court also noted that even
if plaintiff had standing, her contention there was an oral will is inconsistent
with N.J.S.A. 3B:3-2(a)(1). Furthermore, because plaintiff lacked standing and
was not an interested party concerning decedent's intestate estate, the court
declined to address plaintiff's argument that the court-appointed attorney for the
estate had incorrectly identified decedent's nieces as the intestate heirs. This
appeal followed.
Plaintiff alleges the trial court erred in dismissing her complaint for lack
of standing. She further argues the court misinterpreted her breach of contract
claim and that the court failed to properly consider the standard for dismissal
under Rule 4:6-2. More particularly, plaintiff relies on Ballard v. Schoenberg,
224 N.J. Super. 661 (App. Div. 1988), for the proposition she and decedent
entered into an enforceable oral contract and that she was entitled to his intestate
estate.1
1 Plaintiff also relies on In re Estate of Roccamonte, 174 N.J. 381 (2002). That matter involved a palimony case which is unrelated to the claims in this matter. A-3620-21 3 Our review of orders that dismiss claims for lack of standing is de novo.
Courier-Post Newspaper v. Cnty. of Camden, 413 N.J. Super. 372, 381 (App.
Div. 2010). We also review a motion to dismiss for failure to state a claim upon
which relief can be granted under Rule 4:6-2(e) de novo. Baskin v. P.C. Richard
& Son, LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus,
Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). "A
reviewing court must examine 'the legal sufficiency of the facts alleged on the
face of the complaint,' giving the plaintiff the benefit of 'every reasonable
inference of fact.'" Ibid. (quoting Dimitrakopoulos, 237 N.J. at 107). Courts
should search the complaint thoroughly "and with liberality to ascertain whether
the fundament of a cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if necessary." Ibid.
(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989)). But "if the complaint states no claim that supports relief, and discovery
will not give rise to such a claim, the action should be dismissed." Ibid. (quoting
Dimitrakopoulos, 237 N.J. at 107).
Plaintiff essentially advances two claims regarding the nature of the
agreement with decedent. Her primary claim is that she had a contract with
decedent—distinct from a will. She also argues, however, her agreement with
A-3620-21 4 decedent was "akin to a will." The trial court viewed plaintiff's argument
regarding the contract as "a will in disguise." We address both contentions
below.
To the extent plaintiff asserts her agreement with decedent was akin to a
will or an oral will, we note under New Jersey law:
[A] will shall be:
(1) in writing;
(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
[N.J.S.A. 3B:3-2(a)(1)-(3).]
The term "'will' . . . includes every species of testamentary act, which takes its
effect from the mind of the testator, requiring a sound and disposing mind and
capacity, and manifested by the proper execution of an instrument in writing
. . . ." In re Est. of Sapery, 28 N.J. 599, 607 (1959) (emphasis added). Here,
plaintiff argues decedent made an oral contract—akin to a will—to devise
everything he owns to her upon his death. However, it is undisputed there is no
A-3620-21 5 evidence of any written will, let alone a document signed by decedent related to
the purported promise. Accordingly, the trial court did not err in finding there
was no valid claim asserted based on any oral will.
We now turn to plaintiff's primary argument that her agreement with
decedent was not a will, but rather an oral contract. The trial court did not
squarely address this argument. Although we agree with the court that plaintiff's
complaint should have been dismissed, we do so, in part, for a different reason
noted below.2
Plaintiff argues the trial court erred in dismissing her complaint for lack
of standing based on her oral agreement with decedent in which he promised to
give her everything he owned upon his death in return for her caring for her
mother and planting a tree when decedent died. She contends this agreement
was enforceable and is analogous to the oral contract in Ballard, 224 N.J. Super.
661. Plaintiff's reliance on Ballard, however, is misplaced. There, in an action
for possession of a thirteen-acre farm, the defendant, a former farm worker for
the decedent, alleged the decedent orally promised—in 1960—he would devise
2 An order will be affirmed on appeal if it is correct, even if we do not adopt the specific reasoning of the trial judge. State v. McLaughlin, 205 N.J. 185, 195 (2011) (citing Isko v. Plan. Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968)).
A-3620-21 6 the farm to her if she did the farm work and carried on the business of the farm
during his lifetime. Id. at 663. Decedent died in 1984, and litigation ensued
between the executor of the estate and the defendant. Ibid. We ultimately
affirmed the trial court's judgment in favor of the defendant, enforcing the
contract. Ibid. Importantly, however, we specifically noted, "[r]ecognizing that
decedent's oral undertaking antedated by approximately eighteen years the
effective date of N.J.S.A. 3B:1-4, plaintiff raises no issue of the applicability of
that statute, which bars enforcement prospectively of oral undertakings to devise
real property upon performance of services during the feeholder's lifetime." Id.
at 664 n.1. That is, we were mindful that oral promises such as the one alleged
by plaintiff in this appeal, after the effective date of N.J.S.A. 3B:1-4, would be
subject to a different analysis.
N.J.S.A. 3B:1-4 requires proof of a writing regarding contracts made to
devise property.3 Specifically, the statute provides:
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the
3 We further observe that N.J.S.A. 3B:1-4 applies to "testamentary disposition of real or personal property" pursuant to N.J.S.A. 3B:1-1. A-3620-21 7 contract; or (3) a writing signed by the decedent evidencing the contract. . . .
The oral promise plaintiff seeks to enforce here was made in 1987, subsequent
to the effective date of N.J.S.A. 3B:1-4. Because decedent passed away without
a will or any writing evidencing the alleged oral contract with plaintiff, we
conclude plaintiff failed to satisfy the requirements of N.J.S.A. 3B:1-4. Because
oral promises for testamentary disposition are unenforceable under N.J.S.A.
3B:1-4, the trial court did not err in dismissing plaintiff's complaint.
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3620-21 8