By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Attorney
After a trial and after they lost their case seeking to probate a Last Will, the plaintiff “miraculously” found an older Will and tried to probate it. The probate Judge specifically rejected defendant’s belated post-trial proffer of the earlier Will they claimed to have only recently discovered in decedent’s basement. But rather than abruptly reject this motion out of hand, the Judge prudently conducted an evidentiary hearing. He then concluded the proponent of the earlier Will had not diligently acted in attempting to find this newer 1979 document. This older Will generally was not as favorable to their interests (because it included a distribution to another family member) as the Wills they had advocated to enforce at the trial. Although the purported 1979 Will was found in decedent’s residence, the plaintiff shared the responsibility to locate it sooner because of her obligation as a fiduciary. This conclusion was buttressed by the Judge’s earlier observation at the conclusion of the trial, characterizing the executor’s conduct as “gross carelessness and indifferent to her fiduciary role.”
The Appellate Court also agreed with the trial Judge’s application of res judicata principles in dismissing plaintiff’s attempt to probate the later Will. Having denied the defendant’s motion for a new trial stemming from their discovery of the 1979 Will, the Judge rightly barred defendant’s subsequent attempt to re-litigate his decision.
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