The Mere Existence of a Parent-child Relationship Does Not Create a Confidential Relationship

     On October 17, 2012, In the Matter of the Probate of the Alleged Will of Joan Pennella, Superior Court ofNew Jersey, Appellate Division, Docket No. A-1958-11T4, the Court again examined the issue of Undue Influence.

     By way of background, the decedent died leaving seven (7) children.  Beginning in 1996, after her husband died, the decedent began making annual gifts to each of her children.  A 1996 Will left her estate to her seven (7) children equally.  In 2006, she made a new Will, leaving her estate to a living trust, of which only five (5) of her children were beneficiaries.  A 2010 Will continued the exclusions.  According to the attorneys, the decedent expressed concern that one of the excluded children was a spendthrift and the other had not paid back borrowed money.  After the decedent died, her oldest son moved to probate the 2010 Will.  The two excluded children filed a contesting answer and counterclaim alleging lack of testamentary capacity and undue influence. 

     Generally speaking, in any attack upon the validity of a will, it is generally presumed that “the testator was of sound mind and competent when [she] executed the will.” Gellert v. Livingston, 5 N.J. 65, 71 (1950). However, “[i]f a will is tainted by undue influence, it may be overturned.” Haynes v. First Nat’l Bank of N.J., 87 N.J. 163, 176 (1981).  Furthermore, “[U]ndue influence” has been defined as “mental, moral or physical” exertion which has destroyed the “free agency of a testator” by preventing the testator “from following the dictates of his own mind and will and accepting instead the domination and influence of another.” Ibid. (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)).

     [T]he burden of proving undue influence lies upon the contestant 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 such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent.  In re Rittenhouse’s Will, 19 N.J. 376, 378-79 (1955).

     Confidential Relationship: a “confidential relationship” exists if the relations between the parties render it certain that they do not deal on terms of equality.  One party may have superior knowledge.  One may exert over-mastering influence.  Conversely, one may be weak or dependent on the other.    Pascale, supra, 113 N.J. at 34.

     Parent-child relationships are among the most natural of confidential relationships, but the mere existence of family ties does not create a confidential relationship.  Vezzetti v. Shields, 22 N.J. Super. 397, 405 (App. Div. 1952).

     Suspicious Circumstances: the second element necessary to create a presumption of undue influence is the presence of “suspicious circumstances.”  Haynes, supra, 87 N.J. at 176.  Such circumstances need be no more than ‘slight.’  Ibid.