IN THE MATTER OF THE WILL OF E. WARREN BRADWAY (CP-0116-2016, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4535-16T3
IN THE MATTER OF THE WILL OF
E. WARREN BRADWAY, Deceased.
____________________________
Submitted May 24, 2018 – Decided June 25, 2018
Before Judges Gilson and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Camden
County, Docket No. CP-0116-2016.
Cronin Trial Lawyers, attorneys for
appellant/cross-respondent Marc A. Coleman
(Joseph D. Cronin, on the briefs).
Cozen O'Connor, PC, attorneys for respondent/
cross-appellant the Estate of E. Warren
Bradway (John P. Johnson, Jr., and Mark A.
Lazaroff, on the brief).
PER CURIAM
This appeal arises out of a dispute concerning a holographic
codicil to a will, written with the blood of the decedent, E.
Warren Bradway. Defendant Marc Coleman appeals from a June 2,
2017 judgment admitting Bradway's will and codicil to probate, and
naming Bradway's partner, Kirston Baylock, executor of Bradway's
estate. The estate cross-appeals from an August 15, 2017 order
denying its motion for sanctions and attorney's fees. We affirm
the judgment because there was clear and convincing evidence that
the codicil was intended to alter Bradway's will. We affirm the
order because we discern no abuse of discretion in the denial of
sanctions and fees.
I.
From 1997 to 2004, Bradway and Coleman were in a long-term
relationship. During that time, they lived together and filed
documents with the Philadelphia Commission on Human Relations
recognizing their relationship as life partners.
In a last will and testament, executed on June 28, 2001 (2001
Will), Bradway named Coleman as his primary beneficiary and
executor of his estate. The 2001 Will was typed, signed by
Bradway, and witnessed by three individuals, whose signatures were
attested to by a notary. The 2001 Will replaced Bradway's first
will, which he executed in February 1977.
In 2004, Bradway and Coleman ended their relationship.
Bradway moved out of the home he had shared with Coleman in
Philadelphia. Thereafter, both Bradway and Coleman entered into
new relationships with new partners. In January 2006, Coleman
filed a certified life partnership termination statement with the
Philadelphia Commission on Human Relations, officially severing
his relationship with Bradway.
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In September 2004, Bradway began a committed relationship
with Baylock. On January 11, 2006, the same day that Coleman
officially terminated his life partnership with Bradway, Bradway
drafted a one-page handwritten codicil to his 2001 Will. The
codicil named Baylock as Bradway's primary beneficiary and
executor, by directing that all references to Coleman in the 2001
Will be replaced with Baylock's name. Bradway drafted the codicil
using his own blood as ink.
Baylock certified and testified that Bradway showed him the
codicil in January 2006, and explained the purpose of the codicil.
Baylock also testified that Bradway showed him the 2001 Will and
showed him that he was storing both the 2001 Will and the codicil
in a filing cabinet.
In 2011, Bradway moved out of his home in Philadelphia and
began living in Baylock's home in New Jersey. Bradway died
unexpectedly in April 2016. Baylock testified that he found
Bradway's 2001 Will and codicil in the filing cabinet, which
Bradway had moved into Baylock's home when they started living
together in 2011.
After their relationship ended in 2004, Bradway and Coleman
had limited contact with each other. They did, however, resolve
a dispute concerning the closing of a bed and breakfast they had
operated in Philadelphia. Ultimately, a Pennsylvania court ruled
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that Coleman had agreed to pay Bradway $95,500 for his share of
the business, and that as of 2012, Coleman still owed Bradway
$76,000 plus interest. In his codicil, Bradway directed that that
debt from Coleman "be in one-half measure forgiven."
In May 2016, the estate filed an action in the Chancery
Division to admit Bradway's 2001 Will and codicil to probate.
Coleman filed an answer and counterclaim, contesting the validity
of the codicil. Thereafter, the parties engaged in discovery,
including the production of reports from four experts who examined
and analyzed the DNA and handwriting on the codicil.
Following the completion of discovery, the Chancery court
conducted a bench trial in May 2017. During the first two days
of trial, all four experts testified: Dr. Julie Heinig, the
estate's DNA expert; Khody Detwiler, the estate's handwriting
expert; Dr. Megan Shaffer MacKenzie, Coleman's DNA expert; and
Robert Baier, Coleman's handwriting expert.
The DNA experts did not have a DNA sample from Bradway.
Accordingly, their analysis and opinions were based on DNA
extracted from the blood on the codicil as compared to DNA samples
provided by Bradway's two brothers. Dr. Heinig testified that the
codicil was written using blood, and opined that the blood had a
99.9999 percent probability of coming from a full-sibling of
Bradway's brothers. Dr. MacKenzie also confirmed that the codicil
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was written using blood. She opined that the DNA in the body of
the codicil reflected "mixed-source profiles" that came from more
than one contributor. She ultimately acknowledged, however, that
the major contributor of the DNA was a full-sibling of Bradway's
brothers, and that the mixed-source profiles may have been caused
by transfer DNA left by others who handled the codicil prior to
her analysis. Dr. MacKenzie also acknowledged that her lab had
used all of the blood from the signature line on the codicil to
analyze the DNA.
Both handwriting experts, Detwiler and Baier, opined that the
handwriting in the body of the codicil was Bradway's handwriting.
Detwiler also opined that the signature on the codicil was
Bradway's authentic signature and that the signature had not been
made using "autopen." Baier opined that the signature on the
codicil was in Bradway's handwriting, but stated that he could not
rule out that the signature had been placed there by a "robotic
machine" or "cut-and-paste."
After Coleman's experts finished testifying, the estate moved
for a directed verdict. The estate argued that both DNA experts
agreed that the body of the codicil was written in the blood of a
full-sibling of Bradway's brothers. Accordingly, Bradway was the
only possible source of the blood on the codicil. The estate also
argued that the handwriting experts agreed that the body of the
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codicil was in Bradway's handwriting and that any argument
concerning the signature was not relevant because Coleman's own
DNA expert acknowledged that the signature was written in the
blood of a paternal relative of Bradway's brothers.
Coleman opposed the motion contending that it was premature
because he had additional witnesses. In that regard, Coleman
argued that he was prepared to call two witnesses who would testify
that at the time of Bradway's death there was no signature on the
codicil. Thus, Coleman contended that Baylock may have placed the
signature on the codicil after Bradway's death.
The trial judge granted the estate's motion, reasoning that
there was clear and convincing evidence that Bradway intended the
codicil to alter his 2001 Will. Based on the testimony from both
DNA experts, the court found that the codicil was written in
Bradway's own blood. The court then reasoned that even without a
signature, the handwriting and content of the codicil established
Bradway's intent to alter his 2001 Will. In that regard, the
court analyzed the codicil and found several identifiers that
clearly and convincingly established Bradway's intent to alter his
2001 Will.
The court then concluded that the codicil was valid under
N.J.S.A. 3B:3-3. Accordingly, on June 2, 2017, the trial court
entered an order of judgment admitting the 2001 Will and codicil
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to probate and appointing Baylock as the executor of Bradway's
estate.1
Thereafter, the estate filed a motion for sanctions and
attorney's fees against Coleman and his counsel. In making that
motion, the estate relied on Rule 1:4-8 and N.J.S.A. 2A:15-59.1,
which allow for the imposition of sanctions and attorney's fees
against a party and counsel who pursue frivolous litigation. The
court heard oral arguments on August 11, 2017, and on August 15,
2017, it issued an order denying that motion. The court explained
that it did not find Coleman's pursuit of the litigation to be
1
Prior to trial, a dispute arose concerning two missing coin
collections: one collection worth approximately $400,000, and
another worth approximately $4000. The estate contended that
Bradway's brothers had taken the coin collections, which belonged
in Bradway's estate. Bradway's brothers contended that they had
only taken the $4000 coin collection, which belonged to their
mother and did not belong in Bradway's estate. In October 2016,
the court held a teleconference with the parties and advised them
that it was severing the dispute concerning the $400,000 coin
collection from the probate action, because any alleged theft was
a criminal matter to be handled by the police. The court also
advised the parties that the question of whether the $4000 coin
collection should be included in Bradway's estate would be
addressed after the probate matter was decided. On October 19,
2016, the court entered an order allowing Bradway's brothers to
retain possession of the $4000 coin collection pending the outcome
of the probate matter, but directed the brothers not to dissipate
that asset. Ultimately, the estate withdrew its motion concerning
the $4000 coin collection. Baylock filed a police report
concerning the missing $400,000 coin collection, but that issue
was not addressed or decided during the probate matter and,
therefore, is not before us on appeal.
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frivolous because Coleman had taken reasonable positions in light
of the "eccentric" nature of Bradway's preparation of the codicil
using his own blood.
II.
Coleman now appeals from the January 2, 2017 judgment.2 The
estate cross-appeals from the August 15, 2017 order denying its
motion for sanctions and attorney's fees. We will address the
appeal and cross-appeal in turn.
A. Coleman's Appeal
On appeal, Coleman argues that the trial court erred by:
(1) prematurely granting a directed verdict before he submitted
all of his evidence; and (2) not viewing the evidence in the light
most favorable to him in deciding the estate's motion for a
directed verdict. In support of these arguments, Coleman states
that he was prepared to call two witnesses who would have testified
that Bradway's signature was not on the codicil at the time of his
death. Coleman then argues that there was not clear and convincing
evidence that Bradway intended the codicil to alter his 2001 Will.
We disagree and affirm.
2
Coleman initially filed a notice of appeal before the trial court
ruled on the estate's motion for sanctions and fees. Thereafter,
Coleman withdrew that initial notice of appeal and reinstated it
after the trial court entered the August 15, 2017 final order.
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We conduct a de novo review of a directed verdict, using the
same standard as the trial court. Akhtar v. JDN Props. at Florham
Park, LLC, 439 N.J. Super. 391, 403 (App. Div. 2015). Accordingly,
we "must accept as true all evidence that supports the non-moving
party's position and all favorable legitimate inferences therefrom
to determine whether the moving party is entitled to judgment as
a matter of law." Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2,
5 (1969)).
In reviewing evidence rulings, however, we use an abuse of
discretion standard. See Estate of Hanges v. Metro. Prop. & Cas.
Ins. Co., 202 N.J. 369, 383-84 (2010). ("Evidentiary decisions are
reviewed under the abuse of discretion standard because . . . the
decision to admit or exclude evidence is one firmly entrusted to
the trial court's discretion.")
In a probate matter, the court's role is "to ascertain and
give effect to the probable intention of the testator." Fid.
Union Tr. v. Robert, 36 N.J. 561, 564 (1962); In re Prob. of Will
& Codicil of Macool, 416 N.J. Super. 298, 307 (App. Div. 2010).
In so doing, the court must "look to the language of the will to
determine if the testator expressed an intent as to how the
property should be distributed." In re Estate of Hope, 390 N.J.
Super. 533, 539 (App. Div. 2007).
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Writings intended to be wills are governed by statutory
provisions. See N.J.S.A. 3B:3-2 to -3. N.J.S.A. 3B:3-2 addresses
the technical requirements for wills and describes two types of
wills: the traditional will, N.J.S.A. 3B:3-2(a), and the
holographic will, N.J.S.A. 3B:3-2(b). Both of those subsections
authorize wills that are in writing and signed by the testator.
Macool, 416 N.J. Super. at 311.
N.J.S.A. 3B:3-3 addresses a form of testamentary document
that "was not executed in compliance with N.J.S.A. 3B:3-2." It
provides:
Although a document or writing added upon a
document was not executed in compliance with
[N.J.S.A.] 3B:3-2, the document or writing is
treated as if it had been executed in
compliance with [N.J.S.A.] 3B:3-2 if the
proponent of the document or writing
establishes by clear and convincing evidence
that the decedent intended the document or
writing to constitute: (1) the decedent's
will; (2) a partial or complete revocation of
the will; (3) an addition to or an alteration
of the will; or (4) a partial or complete
revival of his formerly revoked will or of a
formerly revoked portion of the will.
[N.J.S.A. 3B:3-3.]
To be recognized as a will or a codicil under N.J.S.A. 3B:3-3, the
document or writing need not be signed by the testator. Macool,
416 N.J. Super. at 311.
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In granting the directed verdict to the estate, the trial
court did not rely on N.J.S.A. 3B:3-2. Instead, the court accepted
Coleman's position that the codicil was unsigned at the time of
Bradway's death. Thus, the court applied N.J.S.A. 3B:3-3, and
focused on whether there was clear and convincing evidence in the
body of the codicil to establish that Bradway intended to alter
his 2001 Will. We also look to N.J.S.A. 3B:3-3.
Here, the handwriting experts agreed that the body of the
codicil was written in Bradway's handwriting. Thus, there was
clear and convincing evidence that Bradway wrote the codicil.
Indeed, on this appeal Coleman "concedes that the body of the
codicil in question was written by Mr. Bradway." The question
under N.J.S.A. 3B:3-3 then becomes whether there is clear and
convincing evidence that Bradway intended the codicil to alter his
2001 Will.
We agree with the trial court that evidence of Bradway's
clear and convincing intent is established by the codicil itself.
First, the codicil uses language showing a clear intent to be a
freely attested to "codicil." In that regard, the codicil states:
In the Name of God, Amen
This codicil drawn by me on 11 January 2006
and transcribed in mine own hand – I of sound
and disposing mind and memory, of my own free
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will and volition devoid of any external
influence that may be contrary to my wishes
amend my last will & testament bearing the
date of 28 June 2001 ----
Second, the codicil has at least four identifiers that clearly
and convincingly establish that Bradway intended to alter his 2001
Will. The codicil: (1) states that it is Bradway's "wish[]" to
"amend" his 2001 Will; (2) references his former partner, "Mark
Albert Coleman"; (3) "directs" that any references to Coleman in
the 2001 Will be replaced with his current partner, "Kirston John
Baylock"; and (4) references the debt Coleman owed to him from the
home they had operated as a bed and breakfast at "1203 Pine Street,
Philadelphia City and County within the Commonwealth of
Pennsylvania[.]"
Finally, that the codicil was prepared using Bradway's own
blood adds support to the other clear and convincing evidence that
Bradway intended the codicil to alter his 2001 Will. All of the
experts agreed that the body of the codicil was written in blood
that came from a full-sibling of Bradway's brothers. The estate's
expert opined that the codicil was written in Bradway's blood.
Coleman's DNA expert testified that the blood was not from either
of Bradway's two known brothers – leaving Bradway as the only
logical source of the blood.
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Coleman contends that the evidence was not clear and
convincing because there was a dispute over whether Bradway had
signed the codicil before his death. That contention is not
relevant under N.J.S.A. 3B:3-3, because a signature is not
necessary. Moreover, that contention does not undermine the clear
and convincing evidence of Bradway's intent to write the codicil
as an alteration of his 2001 Will. Even without his signature,
we have Bradway's undisputed handwritten intentions clearly and
convincingly expressed in the body of the codicil.
There was also no error in the trial court deciding the
directed verdict before Coleman finished presenting his full case.
Coleman represented that his remaining evidence would be testimony
that the codicil was not signed at the time of Bradway's death.
As already explained, the lack of Bradway's signature does not
undercut the clear and convincing evidence of Bradway's intent as
expressed in the codicil which he indisputably wrote. Moreover,
in deciding the estate's motion for a directed verdict, the trial
court accepted the proffered testimony that the codicil was
unsigned at the time of Bradway's death. Accordingly, Coleman was
not prejudiced by the court's decision to address the estate's
motion before hearing that testimony.
Normally, a motion for a directed verdict "may be made by a
party either at the close of all the evidence or at the close of
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the evidence by an opponent." R. 4:4-1. The language of the
rule, however, does not prohibit a motion from being made at
another time. Thus, the rule states when a party "may" make a
motion for judgment. Here, we find no abuse of discretion in the
trial court's decision not to hear testimony that would have only
gone to the alleged lack of Bradway's signature on the codicil at
the time of his death.
In short, the record developed at trial established clear and
convincing evidence that Bradway intended the codicil to alter his
2001 Will. Accordingly, the codicil was properly admitted for
probate in accordance with N.J.S.A. 3B:3-3.
B. The Estate's Cross-Appeal
Under the frivolous litigation statute, N.J.S.A. 2A:15-59.1,
the assessment of attorney's fees and sanctions rests within the
sound discretion of the trial court. In re Estate of Ehrlich, 427
N.J. Super. 64, 73 (App. Div. 2012). Accordingly, we review such
decisions under an abuse of discretion standard. Ibid. (citing
United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App.
Div. 2009)).
"A party who prevails in a civil action . . . may be awarded
all reasonable litigation costs and reasonable attorney fees, if
the judge finds . . . that a complaint, counterclaim, cross-claim
or defense of the non[-]prevailing [party] was frivolous."
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N.J.S.A. 2A:15-59.1(a)(1). To receive a fee award for frivolous
litigation, the prevailing party must show that "the
non[-]prevailing party either brought the claim in bad faith for
harassment, delay, or malicious injury; or 'knew, or should have
known that the complaint [or] counterclaim . . . was without [any
reasonable] basis in law or equity . . . .'" Ehrlich, 427 N.J.
Super. at 77 (quoting N.J.S.A. 2A:15-59.1(b)).
In addition, an attorney may be sanctioned for asserting
frivolous claims on behalf of a client. R. 1:4-8. A claim is
considered frivolous when "no rational argument can be advanced
in its support, or it is not supported by any credible evidence,
or it is completely untenable." First Atl. Fed. Credit Union v.
Perez, 391 N.J. Super. 419, 432 (App. Div. 2007). Even when some
allegations are later determined to lack merit, however, a
complaint is not rendered frivolous if it also contains
non-frivolous claims. Ehrlich, 427 N.J. Super. at 77.
In denying the estate's motion, the court found that Coleman
and his counsel asserted legitimate claims regarding Bradway's
intent to alter his 2001 Will. We discern no abuse of discretion
in that decision and, accordingly, we affirm the order.
Affirmed.
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