The decedent’s eldest daughter Francine was the executrix of her estate. In 2011, the attorney for the executrix forwarded an informal accounting and Refunding Bond & Release (the “Refunding Bond”) to the executrix’s sister Susan (a beneficiary of the estate), who signed and returned the Refunding Bond the next day.

Eight years later, Susan sued Francine, seeking to reopen the estate administration, vacate the Refunding Bond, and compel the executrix to file an accounting. In response, the executrix filed a motion to dismiss the action for failure to state a claim upon which relief may be granted. The chancery court granted the motion and dismissed the action.

In considering the motion, the probate court began by noting that “at this stage of the litigation, the Court should not be concerned with the plaintiff’s ability to prove the allegations contained in the complaint, but rather should ascertain whether the facts alleged suggest a cause of action.” The court concluded that it did not.

First, the court found that the plaintiff’s complaint was barred by the terms of the Refunding Bond itself:

Where all interested parties agree to an informal accounting and sign a release and refunding bond, none of them can later compel a formal accounting absent a showing of fraud, misrepresentation, mismanagement, undue influence by the fiduciary or substantial misunderstanding by the legatee.

Here, although the plaintiff’s complaint suggested “suspicious behavior” by the defendant, the complaint also indicated that the plaintiff had had suspicions regarding the executrix many years earlier. Moreover, when forwarding the 2011 refunding bond to the plaintiff, the executrix’s attorney welcomed questions and did not impose a deadline for signing the release. The plaintiff had consulted with an attorney regarding the estate in 2011; she retained lawyers in 2015 and then in 2016 to correspond with the executrix’s attorney and potentially file litigation regarding the estate. She was a college educated former school teacher. In sum, “plaintiff had the education and experience necessary to effectively evaluate and understand” the Refunding Bond, and she waived all rights arising from the estate when she signed the Refunding Bond.

In addition, the judge concluded that the relief plaintiff sought in her complaint was barred by the doctrine of laches. The eight year delay would prejudice the executrix’s ability to defend against the action, particularly because she had shredded the estate files in 2011, on prior notice to the plaintiff.

Finally, the probate judge reasoned that, even if the complaint had survived the motion to dismiss, the plaintiff’s anticipated fraud and conversion claims were time-barred: fraud claims in connection with an estate administration are subject to a two-year statute of limitations, pursuant to N.J.S.A. 3B:1-9; conversion claims are subject to a six-year statute of limitations, pursuant to N.J.S.A. 2A:14-1.

A copy of Estate of Tuzzolo can be found here – Estate of Tuzzolo

For additional information concerning probate litigation and will contests, visit:

NJ Will Contests and Probate Litigation