Executors of the estate filed an Order to Show Cause requesting approval of the estate’s final accounting in a summary manner. The Order to Show Cause was entered and a return date was scheduled. Opposing family members filed a responsive pleading, in which they accused the executors of withholding financial information and commingling estate assets. However, they did not object to the matter proceeding in a summary manner, or request a plenary hearing.

On the return date, at which the parties appeared through their counsel, the judge issued an order approving the accounting.

The family members appealed, claiming, among other things, that the probate judge had erred in deciding the matter without a plenary hearing.

The Appellate Division affirmed the probate judge’s decision, and outlined the manner in which a summary action may proceed in probate. In particular, it noted that Rule 4:67-5, which governs summary proceedings, provides that,

if no objection is made by any party, or … the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon.

The appellants claimed that proceeding in a summary manner was inappropriate because the executors had failed to file a motion to proceed summarily, in accordance with Rule 4:67-1(b). The appeals court rejected this argument: because probate matters are permitted to proceed summarily pursuant to Rule 4:83-1, no motion to proceed summarily is required.

The Appellate Division explained that,

appellants’ argument that a hearing was required is based on a mistaken belief that opposition to a summary complaint automatically creates an issue of fact, requiring a hearing.

Instead, the court noted that a judge is permitted under Rule 4:67-5 to “try the action on the pleadings and supporting documents, provided the judge determines there are no genuinely disputed issues of material fact.”

The court emphasized that, unlike a party opposing a summary judgment motion, a party opposing a summary proceeding is not entitled to favorable inferences.

In sum, the court found that the executors had provided the probate judge with ample evidence to  decide the matter without a plenary hearing. The court cited with approval the earlier case of Shaw v. Shaw, where the court had ruled that “it is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required.”

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

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Donald D. Vanarelli has been a practicing attorney since 1983 in New Jersey and New York. Don provides legal services in the areas of elder law, estate planning, trust administration, special education, special needs planning and trial advocacy, including probate litigation, will contests, contested guardianships and elder abuse trials.

Don is a Certified Elder Law Attorney, an Accredited Veterans Attorney and a Past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association. Don is a recipient of the Lifetime Achievement Award, the highest honor given by the New Jersey State Bar Association – Elder and Disability Law Section. The Lifetime Achievement Award is bestowed on an attorney with an established history of distinguished service who has made significant contributions in the field of elder and disability law throughout his or her career. Recently, Don was selected by the New Jersey Law Journal as a Top Rated New Jersey Lawyer in 2019.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don was lead counsel representing the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004), in which the New Jersey Supreme Court, for the first time, permitted guardians to engage in public benefits planning to obtain Medicaid eligibility for their wards. Don also represented the plaintiff in a pivotal case entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014) in which the New Jersey Supreme Court, for the first time, permitted a special needs trust to be designated as the beneficiary of a state pension. Don was also co-counsel representing the plaintiff in Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014) in which a federal court ruled, for the first time, that a pension from the Department of Veterans Affairs may not be counted as income in determining Medicaid eligibility.

When he’s not working, Don spends his time with his wife, Marion, and his three children, Julianne, Evan and Alex.