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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