In the Matter of the Estate of K.T. Chao

NOT FOR PUBLICATION WITHOUT THE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-3475-21

IN THE MATTER OF

THE ESTATE OF

DAVID K.T. CHAO,

deceased.

___________________

Argued September 14, 2023 – Decided February 27, 2024

Before Judges Vernoia, Gummer and Walcott-

Henderson.

On appeal from the Superior Court of New Jersey,

Chancery Division, Morris County, Docket No. P-

002776-18.

Robert P. Zoller argued the cause for appellant Daniel

Chao (Eckert Seamans Cherin & Mellott, LLC,

attorneys; Robert P. Zoller and Emma M. Lombard, on

the briefs).

Adam Paul Dubeck argued the cause for respondent

Christopher Chao (Dubeck & Miller, attorneys; Adam

Paul Dubeck, on the brief).

PER CURIAM

Daniel T. Chao (Daniel) appeals from the Probate Part's May 31, 2022

order admitting the January 17, 2018 will of his father, David K.T. Chao

(decedent), to probate and dismissing Daniel's complaint alleging undue

influence by his brother, respondent Christopher D. Chao (Christopher), and that

decedent lacked the requisite testamentary competency to execute the will.1 We

affirm in part, vacate in part, and remand for further proceedings.

I.

Decedent passed away at age ninety-two on November 21, 2018. He was

survived by his wife, Irene, and three sons, Christopher, Daniel, and Mar k D.

Chao (Mark). Weeks following his death, decedent's January 17, 2018 will was

admitted to probate. The will designates Christopher as executor, provides for

Irene to receive the minimum statutory share, and bequeaths the residuary estate

in equal shares to Christopher and Mark. The January 17, 2018 will revoked

decedent's 2015 will that had designated Daniel as executor, granted Irene the

minimum statutory share, and bequeathed the residuary estate in equal shares to

Daniel, Christopher, and Mark. In short, Daniel received nothing under

decedent's January 17, 2018 will.

1

Because the parties and their family members share the same surname, we

refer to them by their first names for purposes of clarity and convenience. We

intend no disrespect by doing so.

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2

Daniel filed a verified complaint challenging the admission of the will to

probate, claiming decedent lacked the testamentary capacity to execute the

January 17, 2018 will and the will was the product of undue influence by

Christopher. Daniel also challenged Christopher's administration of decedent's

estate as the appointed executor under the will.

The court later denied Christopher's motion for summary judgment on

Daniel's claims but granted Christopher's request for bifurcation of the trial. The

court ordered that it would first conduct a trial on the issues pertaining to the

validity of the January 17, 2018 will and then, "if needed," conduct a trial on the

claims concerning Christopher's actions as executor in administering the estate.

The evidence at the trial on Daniel's challenge to the admission of the will

to probate established that in 2013, decedent contacted Daniel, who was then

living in China, and requested that Daniel return to the Parsippany home

decedent shared with Irene and their youngest son, Mark. Decedent sought

Daniel's assistance in providing care for Irene, who suffered from dementia, and

Mark, who is developmentally disabled. Within one week, Daniel returned to

the United States and moved into decedent's home, where Daniel thereafter

provided care to Irene and Mark.

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3

According to Daniel, beginning in 2016, decedent "was becoming

forgetful" and began asking "what date is it?" and "what month is it?" Daniel

testified that later in 2016, decedent had begun to "get[] physically violent" with

him, Irene, and Mark. Daniel explained there was a gradual increase in the

frequency and violence of decedent's actions against his family members over

the course of 2017 and into 2018. Daniel video recorded at least three incidents

during which decedent had used physical force against Irene and Mark.

On January 16, 2018, the day prior to decedent's execution of the contested

will, Daniel filed a domestic-violence complaint and application for a temporary

restraining order (TRO) against decedent based on claims decedent had

committed acts of domestic violence against eighty-four-year-old Irene and

Mark. Daniel alleged it was a "regular occurrence" for defendant to strike and

verbally abuse Irene and Mark. Daniel further alleged decedent "often

attack[ed] him while he [tried] to protect his mother and brother." Daniel also

averred that there were pending criminal complaints against decedent arising out

of his conduct. The court did not enter the requested TRO on January 16, 2018,

the day Daniel filed the domestic-violence complaint.

Christopher lived in New York in January 2018. He testified that on

January 16, 2018, he contacted the law firm of Dubeck & Miller after he and

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decedent were notified that a TRO was going to be entered the following day

against decedent and that, as a result, decedent was "going to be thrown out of

[his] house." Christopher testified that decedent had sought to speak to an

attorney to determine the steps required to remove Daniel from the house and

"file a complaint for physical violence against Daniel[.]" Christopher explained

decedent also had sought a power of attorney "to protect [decedent] if he was

thrown out of the house and [to] take care of whatever" was necessary.

Christopher explained that the reasons for making the appointment with the law

firm did not include the preparation of a will for decedent.

According to Christopher, at some point during the following morning of

January 17, 2018, he picked up decedent at the Parsippany home and drove him

to the law office of Dubeck & Miller. While at the law firm, Christopher and

decedent first met with attorney Mark D. Miller. They initially discussed with

Miller "how to address the domestic violence complaint" Daniel had filed

against decedent and about the preparation of a power of attorney for decedent.

During those discussions, Christopher received a phone call on his

cellphone from Daniel that Christopher put "on speaker." During the phone call,

Daniel said decedent had "to leave the house" and "see the police." The evidence

established that at 3:10 p.m. on January 17, 2018, the court entered the domestic-

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violence TRO against decedent that Daniel had requested the prior day. The

TRO barred decedent from his home and prohibited decedent from having any

contact or communications with Daniel, Irene and Mark.

According to Christopher, following the phone call, decedent said he

wanted Daniel "out of his life" and his house. Christopher testified that Daniel's

phone call "was the last straw" and generated—for the first time—discussions

concerning the preparation of decedent's new will. Miller testified that "when

the call [from Daniel] came in," decedent insisted the new will "ha[d] to be done

[that] []day." Decedent then had discussions with Miller concerning the

preparation of a will. Christopher testified he was unsure if he was present when

those discussions took place.

Miller drafted decedent's will that day—January 17, 2018. Decedent's

execution of the will was witnessed by Miller and another attorney, Harvey H.

Gilbert. Gilbert's paralegal, Ruth Kuhl, notarized decedent's signature.

Miller testified that on January 16, 2018, he was advised by his partner,

Adam P. Dubeck, that decedent and Christopher were coming to the law office

the following day for preparation of a power of attorney and for "something

about a domestic violence complaint." Miller did not have any understanding

decedent "was interested in doing a will."

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According to Miller, when he first met with decedent and Christopher on

January 17, 2018, "[t]hey wanted" a power of attorney because decedent was

going to be removed from his house. Miller testified that he had expected only

to prepare the power of attorney until Daniel called Christopher. Miller testified

he had overheard the call and, during the call, Daniel said decedent was "outta

the house" and that he had booked a hotel room for decedent.

Miller explained decedent was "upset" and "not happy about" the call and

"decided that not only did he want to do the [power of attorney,] but he wanted

to do a new will." In response to decedent's request, Miller asked decedent if he

was "sure [he] want[ed] to do" a new will that day, and, when he asked, "[d]oes

it have to be done today?" decedent "said yes."

Miller further testified he was informed by either decedent or Christopher

that in decedent's prior will, he had appointed Daniel as executor, provided for

Irene to receive the minimum statutory share of the estate, and bequeathed his

residuary estate in equal shares to his three sons. Miller also recalled that

following Daniel's call and decedent's request for a new will, decedent said "[h]e

wanted Daniel out," Irene to get "the statutory minimum[,]" and "the balance of

his estate to be split equally between Mark and Christopher," with Christopher

to serve as executor.

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Miller also described decedent's physical condition on January 17, 2018,

as "[p]retty good," and he testified decedent "wanted to execute [the will] that

day." While Miller prepared the will, decedent and Christopher went to the

police station and filed a criminal complaint against Daniel. When decedent and

Christopher returned to the law office, Miller reviewed with decedent "the

operative provisions of the will[,]" including "who the beneficiaries are, who the

executor is, who the backup executor is, [and] how the estate is going to be

distributed."2

Miller further testified that he had asked decedent whether he "really

want[ed] to do this" before decedent executed the will. Miller also recalled that

he, Gilbert, and Kuhl asked decedent questions concerning the date, where he

was, and who was the president of the United States, and decedent "convinced"

them he knew what he was doing and "this was what he wanted to do." Miller

explained decedent had mentioned that Daniel was living at decedent's house

and not paying rent, driving decedent's car, "destroying the house and punching

in the walls," and had physical altercations with decedent. Miller testified he

2

In the will, decedent appointed attorney Dubeck to serve as executor in the

event Christopher declined to serve, failed to qualify as executor, or ceased to

act as executor.

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and Gilbert confirmed with decedent that Daniel would receive nothing under

the will, and decedent stated that was what he wanted.

According to Miller, he told decedent he believed there would be a will

contest. Miller brought in Gilbert and Kuhl to "make sure in their own minds"

decedent was "competent to make the will" and the will reflected "what

[decedent] wanted." Miller testified he had asked Gilbert and Kuhl to ask

decedent "their own questions" to ensure "they were confident" decedent's

decision to make a new will was "not the result of an incompetent person,"

decedent "had testamentary capacity," and decedent "wasn't being unduly

influenced by anybody."

Kuhl testified she was a notary public and worked as a paralegal for

Gilbert, whose law practice included the preparation of wills. During her

employment by Gilbert, Kuhl had notarized the signatures on over two hundred

wills, and she notarized decedent's signature on the January 17, 2018 will.

Kuhl testified she was present when Miller had spoken to decedent about

the terms of the will. She explained that Miller had "specifically asked

[d]ecedent to . . . verify that he understood he was leaving one of his sons out of

the will" and that Gilbert had asked decedent questions concerning whether

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decedent "knew what he was doing." She recalled decedent had said he knew

what he was doing and he "wanted to take his son out of his will."

Gilbert testified he had practiced law for fifty years, routinely prepared

wills for clients, and witnessed decedent's execution of the will at Miller's

request. Gilbert explained that on January 17, 2018, Miller had told him that

decedent was "disinheriting one of his children," it was probable there would be

a will contest, and he wanted Gilbert "to make sure that [decedent]

was . . . competent."

Gilbert recalled asking decedent questions prior to the execution of the

will and ascertaining decedent was "very clear" he was signing the will and

"disinheriting one of his sons." Gilbert further testified decedent "knew what

he was doing," "knew where he was and what day it was," and "was on top of

what he was doing." Gilbert also witnessed Miller discussing the content of the

will with decedent. Gilbert testified that based on his interactions with decedent,

he "knew that [decedent] was competent" and he had "[n]o doubts whatsoever"

about decedent's competency.

Christopher called Dr. Jagdesh Dang as a witness. Dr. Dang is a

psychiatrist who conducted an evaluation of decedent on January 26, 2018, nine

days following the execution of the January 17, 2018 will and after decedent's

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move into an assisted-living facility.3 Dr. Dang explained he had been requested

by Miller's partner, Dubeck, to conduct an evaluation of decedent's "capacity."4

Dr. Dang recalled that he had met with decedent alone for "well over an

hour" and perhaps as long as one hour and a half and had determined decedent

was "competent to manage legal affairs," including execution of a will. Dr.

Dang testified decedent had talked about his three children, stated "he was in

conflict with one of his . . . sons," and explained "what the problems were and

why he was writing the will as he was writing" it. Dr. Dang asked decedent

questions to assess his "orientation, memory, attention, concentration,

comprehension, recall, illusions, and hallucinations" and, based on his

evaluation, "certified [decedent] as competent to handle his medical, legal, and

financial affairs."

3

Following his execution of the will on February 17, 2018, decedent stayed

with Christopher for five days and was admitted to an assisted living facility on

February 22, 2018.

4

Dr. Dang testified that he did not recall any conversations with Dubeck or

anyone from Dubeck's law firm concerning the evaluation or the circumstances

that led to Dr. Dang conducting the evaluation. However, in his report, which

was admitted in evidence, Dr. Dang states that he was requested to perform "an

evaluation of [decedent's] capacity to manage his affairs and need for

appointment of a guardian." Dr. Dang acknowledged he was not retained to

render a "testamentary capacity report."

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In connection with a 2018 guardianship proceeding concerning Irene, Dr.

Matthew Barnas, a geriatric psychiatrist, submitted an August 26, 2018

certification stating he was decedent's "treating psychiatrist" and opining

decedent was "forgetful, disorientated to location and month with fluctuating

episodes of severe confusion with delusions and intense agitation and aggressive

behavior" and that decedent's prognosis was "poor."

At trial, the court "accepted" Dr. Barnas "as an expert in the medical field

of psychiatry." Dr. Barnas testified he first saw and evaluated decedent in April

2018, three months after execution of the January 17, 2018 will. Dr. Barnas

offered his opinion as to the likely progression of decedent's condition and

concluded decedent "most likely . . . had the[] same issues, symptoms,

impairments in January [2018] that he was exhibiting in April."

Daniel also presented at trial Dr. Michael Robinson, a psychiatrist whose

practice "involves the evaluation and treatment of patients with mood disorders,

anxiety disorders, [and] schizophrenia" but "include[s] the treatment of people

who have what [is] generally refer[red] to as dementia." The court "accepted"

Dr. Robinson "as an expert in the field of psychiatry."

Dr. Robinson never examined decedent. Instead, he reviewed the

complaint in this matter, Dr. Barnas's records and certification, Dr. Dang's

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certification, and decedent's medical records from Morristown Memorial

Hospital. Dr. Robinson opined decedent suffered from "significant impaired

functioning and cognitive status" that he concluded were extant when decedent

executed the January 17, 2018 will and did not improve thereafter. According

to Dr. Robinson, the fact that Dr. Barnas's reports and examinations post-dated

the execution of the will did not affect his opinions because, in his view, "there

was clear evidence of dementia and impaired decision making well prior to that."

Daniel presented evidence establishing that decedent had executed a 2015

will that modified a 1994 will, which had appointed Irene as executor and Daniel

and Christoper as successor executors. In the 2015 will, decedent bequeathed a

spousal elective share to Irene, and the residual estate equally to Daniel,

Christopher, and Mark. The will appointed Daniel as executor and decedent's

niece as successor executor and trustee. In 2015, decedent also executed a

document granting Daniel power of attorney on decedent's behalf.

According to Daniel, decedent eliminated Christopher as a successor

executor in the 2015 will because it had been discovered Christopher previously

took substantial sums of money from Irene—including $120,000 she had

inherited from a relative—without Irene's knowledge or consent. A criminal

investigation of Christopher's alleged conversion of the funds resulted in his

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agreement to repay the monies taken and his execution of a promissory note

obligating him to do so. According to Daniel, decedent executed the 2015 will

"to ensure that Christopher had no opportunity to take control of anyone's money

in the family," including decedent's estate and Mark's trust fund.

In its written statement of reasons following the presentation of evidence,

the court made findings of fact based on the evidence presented and its

assessment and weighing of the evidence it found credible and persuasive. The

court concluded Daniel had failed to sustain his burden of establishing decedent

was either subject to undue influence by Christopher or lacked sufficient

testamentary capacity to execute the will on January 17, 2018. The court entered

an order admitting the will to probate, and this appeal followed.

II.

"The findings of the trial court on the issues of testamentary capacity and

undue influence, though not controlling, are entitled to great weight since the

trial court had the opportunity of seeing and hearing the witnesses and formi ng

an opinion as to the credibility of their testimony." Gellert v. Livingston, 5 N.J.

65, 78 (1950). The court's factual findings "should not be disturbed unless they

are so manifestly unsupported or inconsistent with the competent, reasonably

credible evidence so as to offend the interest of justice." In re Will of Liebl, 260

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N.J. Super. 519, 524 (App. Div. 1992). "A trial court's interpretation of the law

and the legal consequences that flow from established facts are not entitled to

any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Twp. of

Manalapan, 140 N.J. 366, 378 (1995). We apply these standards here.

A.

Daniel claims the court erred by finding decedent had sufficient

testamentary capacity on January 17, 2018, to execute the will. Daniel contends

the court could not correctly find decedent had the requisite testamentary

capacity because it otherwise stated in its opinion that it "accept[ed]" the

opinions of Drs. Robinson and Barnas, and they had testified decedent lacked

the testamentary capacity to sign the will on January 17, 2018. David argues

"[t]he only logical conclusion that flows from the trial court's acceptance of [his]

medical expert's testimony is the [will] is invalid as a matter of law."

"The point in time at which testamentary capacity is to be tested is that of

the execution of the will." Gellert, 5 N.J. at 76. There are legal presumptions

"in favor of testamentary capacity," In re Hoover's Est., 21 N.J. Super. 323, 325

(App. Div. 1952), and "that 'the testator was of sound mind and competent when

he executed the will,'" Liebl, 260 N.J. Super. at 524 (quoting Haynes v. First

Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981)).

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Generally, "the law requires only a very low degree of mental capacity for

one executing a will." In re Will of Rasnick, 77 N.J. Super. 380, 394 (Cnty. Ct.

1962). Testamentary capacity is measured by "'whether the testator can

comprehend the property he is about to dispose of; the natural objects of his

bounty; the meaning of the business in which he is engaged; the relation of each

of the factors to the others, and the distribution that is made by the will.'" Liebl,

260 N.J. Super. at 524 (quoting Gellert, 5 N.J. at 73). Thus, even where "[a]

will may be contrary to the principles of justice and humanity [and] its

provisions may be shockingly unnatural and extremely unfair," a court is "bound

to uphold it" as long as "it appears to have been made by a person of sufficient

age to be competent to make a will and also to be the free and unconstrained

product of a sound mind[.]" Hoover's Est., 21 N.J. Super. at 325.

"[T]he burden of establishing a lack of testamentary capacity is upon the

one who challenges its existence." Ibid. As the trial court correctly recognized,

"[t]hat burden must be sustained by clear and convincing evidence." Ibid.

The court made detailed findings supporting its determinations decedent

had the requisite testamentary capacity to execute the will, Daniel had failed to

present clear and convincing evidence sufficient to overcome the presumption

that decedent had the requisite testamentary capacity, and Christopher otherwise

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had presented persuasive evidence decedent possessed requisite capacity when

he executed the will.

The court found credible and persuasive the testimony of attorneys Miller

and Gilbert, and notary public Kuhl, concerning decedent's appearance, words,

and actions on the day he decided he wanted a new will, asked for the will to be

prepared, and executed the will in response to Daniel's decision to obtain a TRO

that ousted decedent from his home and prevented him from returning. The

court also found persuasive the testimony of Dr. Dang, who had evaluated

decedent nine days after the will's execution to determine defendant's capacity

to govern his personal and legal affairs, and who had opined decedent possessed

that capacity at that time. In sum, the court's determination decedent possessed

the requisite testamentary capacity is supported by substantial credible evidence ,

and we therefore discern no basis to reverse its conclusion. See Liebl, 260 N.J.

Super at 523.

We reject Daniel's contention we must reverse the court's determinations

because the court otherwise stated in its opinion that it "accept[ed]" the opinions

offered by Drs. Robinson and Barnas. To be sure, those experts opined that

decedent did not have the testamentary capacity to execute the will on January

17, 2018, but Dr. Barnas did not begin to treat decedent until three months after

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the will's execution and Dr. Robinson never met or evaluated decedent and based

his opinion solely on a review of decedent's medical records, the complaint, and

the certifications of the other doctors.

In our view, Daniel's reliance on the court's statement it had accepted the

opinions of Dr. Robinson and Dr. Barnas is misplaced and is not based on a fair

reading of the court's decision. Although the court stated that it accepted those

opinions, in the next sentence the court plainly explained that it found the

testimony of Miller, Gilbert, and Kuhl "more persuasive and of greater

significance" than the testimony of Daniel's medical experts. In other words,

the court had accepted the testimony of Daniel's medical experts but determined

it was not as persuasive as that of the experienced lawyers who had spent a good

part of a day with decedent and who testified decedent's words and actions

demonstrated "[h]e knew what property he was disposing of and he knew who

he was benefitting and that he was removing Daniel as [a] beneficiary." The

court went further. It also expressly determined that the testimony was so

persuasive that it provided clear and convincing evidence decedent possessed

the requisite testamentary capacity when he executed the will.

Contrary to Daniel's suggestion in his brief on appeal, the court was not

bound to accept the testimony of his experts because they were doctors. See In

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re Halton's Est., 111 N.J. Eq. 143, 146 (Prerog. Ct. 1932) ("[T]he court is not

obligated to accept the opinions of any witness or group of witnesses, medical

or otherwise[,]" regarding "[a] decedent's mental capacity[.]"); see also

Loveridge v. Brown, 98 N.J. Eq. 381, 385 (E. & A. 1925). "The question of

testamentary capacity is one of fact to be determined by the court, and opinions,

expert or otherwise, are mere aids to the court in reaching such determination

but are in no sense binding." In re Halton, 111 N.J. Eq. at 146. The court was

free to accept or reject the testimony of Daniel's experts and, in our view, the

only fair reading of the court's decision makes manifest the court simply found

the testimony of the individuals who spent January 17, 2018, with decedent more

credible, persuasive and compelling than the testimony of the doctors.

For those reasons, we affirm the court's determination Daniel failed to

present clear and convincing evidence overcoming the presumption that

decedent had the requisite testamentary capacity to execute the will. Further,

the court's affirmative finding that decedent possessed the requisite testamentary

capacity is supported by substantial evidence the court found credible and

persuasive. We reject Daniel's arguments to the contrary.

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B.

Daniel next claims the court erred by determining decedent's execution of

the will was not the product of undue influence exerted by Christopher. More

particularly, Daniel asserts the court did not apply the correct legal standard in

its analysis of his undue influence claim and, for that reason, we should reverse

or remand the issue for further consideration and findings.

As noted, "[i]n any attack upon the validity of a will, it is generally

presumed that 'the testator was of sound mind and competent

when . . . execut[ing] the will.'" Haynes, 87 N.J. at 175-76 (quoting Gellert, 5

N.J. at 71). A will "may be overturned" where it is "tainted by 'undue

influence.'" Ibid. "Undue influence, to vitiate a will, must be operative at the

time the will is executed." Gellert, 5 N.J. at 76.

In a challenge to the validity of a will, "undue influence" is defined as a

"mental, moral or physical exertion of a kind and quality that destroys the free

will of the testator by preventing that person from following the dictates of his

or her own mind as it relates to the disposition of assets[.]" In re Est. of

Stockdale, 196 N.J. 275, 302-03 (2008); see also Haynes, 87 N.J. at 176. Undue

influence "denotes conduct that causes the testator to accept the 'domination and

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influence of another' rather than follow his or her own wishes." Stockdale, 196

N.J. at 303 (quoting In Re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)).

The analysis of an undue influence claim is governed by a well-

established paradigm. The party challenging the will bears the burden of

proving undue influence. In re Est. of Folcher, 224 N.J. 496, 512 (2016).

However, where "the will benefits one who stood in a confidential relationship

to the [testator] and there are additional circumstances of a 'suspicious character

present which require explanation,'" Rittenhouse's Will, 19 N.J. 376, 378-79

(1955), a presumption of undue influence arises, and the burden of proof shifts

to the proponent of the will "to overcome the presumption," Stockdale, 196 N.J.

at 303, ordinarily by a preponderance of the evidence, see Haynes, 87 N.J. at

177-78 (explaining the preponderance of the evidence standard generally applies

to undue influence claims arising from challenges to a will).5

5

In Haynes, the Court otherwise noted the preponderance of the evidence

standard does not apply, and instead, a "heavier burden of proof" applies to rebut

a presumption of undue influence where "the presumption of undue influence is

so heavily weighted with policy that the courts have demanded a sterner measure

of proof than that usually obtaining upon civil issues." 87 N.J. at 178 (quoting

In re Week's Est., 29 N.J. Super. 533, 539 (App. Div. 1954)). In Stockdale, the

Court explained that where a challenger to a will establishes a confident ial

relationship and suspicious circumstances by a preponderance of the evidence ,

and thereby establishes a presumption of undue influence, the proponent of the

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In its analysis of Daniel's challenge to the will, the court did not apply this

well-established analytical framework to the undue-influence claim. The court

instead erroneously found that for Daniel "to succeed" on his undue influence

claim, he was required to first establish by clear and convincing evidence that

Christopher had a confidential relationship with decedent and that there were

attendant suspicious circumstances. The court therefore applied the incorrect

legal standard—the more stringent clear-and-convincing standard—in

concluding Daniel did not prove a confidential relationship and special

circumstances such as to create a presumption of undue influence and shift the

burden of proving the absence of undue influence to Christopher. See Stockdale,

196 N.J. at 303.

will may overcome the presumption "in accordance with the preponderance of

the evidence standard," 196 N.J. at 303 (citation omitted).

Citing its holding in Haynes, the Court in Stockdale further explained that where

the challenger to a will establishes a presumption of undue influence , the

proponent of the will must overcome the presumption of undue influence by

clear and convincing evidence where "the presumption arises from a

'professional conflict of interest on the part of an attorney, coupled with

confidential relationships between a testator and the beneficiary as well as the

attorney[.]'" Ibid. (citation omitted). That is because the existence of the

attorney-client "relationship alone often results in both the shifting of the burden

of proof and in the imposition of the heavier burden of clear and convincing

evidence to rebut the presumption." Id. at 304. Here, it does not appear there

are any similar circumstances warranting application of a "clear and convincing"

burden of proof.

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The court's application of the incorrect legal standard of proof to assess

Daniel's undue-influence claim requires a remand for reconsideration of the

issue by the trial court in the first instance. On remand, the court shall reconsider

the issue, apply the preponderance of the evidence standard, and make

appropriate findings of fact, R. 1:7-4, supporting its determination under the

applicable legal principles.6 Based on its findings and determination, the court

may amend its final judgment on Daniel's challenge to the will if necessary and

as appropriate. The court shall also permit the parties to offer additional written

submissions addressing the undue-influence issue, and the court may conduct

such additional proceedings as it deems appropriate for the proper resolution of

the claim. Our decision to vacate the court's order rejecting the undue-influence

claim and remand for reconsideration shall not be construed as expressing an

opinion on the claim's merits.

6

We note that in its discussion of Daniel's claim decedent lacked the

testamentary capacity to execute the will, the court correctly explained that

Daniel had the burden of establishing a lack of testamentary capacity by "clear

and convincing evidence," see Hoover's Est., 21 N.J. Super. at 325, but noted

that even if the standard required proof by only a preponderance of the evidence,

Daniel had not satisfied that burden. The court did not make a similar finding

in its analysis and reasoning supporting its rejection of Daniel's undue influence

claim.

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C.

Daniel further contends the court erred by denying his request to admit

into evidence three video clips that purportedly show decedent committing acts

of domestic violence against Irene and Mark. Daniel contends the "best

evidence rule dictates that" the clips should have been admitted to establish

decedent had been acting in a manner supporting Daniel's expert's opinions that

decedent suffered from impaired testamentary capacity.

The court did not sustain the objection to Daniel's request to admit the

video clips under the Rules of Evidence. The court refused to admit the clips in

evidence because Daniel had not timely identified them as exhibits in

accordance with the timetable set forth in a pretrial case management order. The

court also denied admission of the clips in evidence because it anticipated Daniel

would otherwise testify about decedent's acts of physical domestic violence

against Irene and Mark as depicted in the video clips. And, in fact, Daniel

testified at trial concerning numerous incidents of physical violence by decedent

on Irene and Mark, including the incidents depicted on the video clips, and the

court noted in response to the testimony—which was unrebutted—that the video

clips need not be admitted because they were cumulative.

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It is unnecessary to address the merits of Daniel's claim the court abused

its discretion by denying his request to allow admission of the video clips in

evidence. Even if the court erred by denying the request, the error was harmless,

and harmless errors are not grounds for reversal on appeal. See Willner v.

Vertical Realty, Inc., 235 N.J. 65, 79 (2018). "An error cannot be harmless if

there is 'some degree of possibility that [the error] led to an unjust result.'" Ibid.

(quoting State v. Lazo, 209 N.J. 9, 26 (2012) (alteration in original)), and Daniel

makes no showing of any possibility the court's purported error led to an unjust

result here.

To the contrary, the court permitted Daniel to describe in detail decedent's

alleged numerous prior instances of physically assaultive behavior against Irene

and Mark, and, as noted, the testimony was unrebutted. Moreover, the court

clearly accepted Daniel's testimony that decedent had engaged in physically

assaultive behavior prior to his execution of the will on January 17, 2018. In its

findings of fact, the court affirmatively found decedent had become "very

physically aggressive toward his wife and disabled son." Based on those

circumstances, we discern no basis to conclude that any alleged error in denying

Daniel's request to admit the three video clips in evidence was clearly cap able

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of producing an unjust result. R. 2:10-2. Any error was harmless and does not

support a reversal of the court's order. Willner, 235 N.J. at 79.

D.

In sum, we affirm the court's rejection of Daniel's claim decedent lacked

the testamentary capacity to execute the January 17, 2018 will and vacate the

court's order rejecting Daniel's claim the will was the product of undue influence

exercised by Christopher. We remand the undue-influence claim for

reconsideration by the trial court in accordance with this decision and the

applicable legal principles. We further reject Daniel's contention that the court's

order should be reversed because the court erred in barring the introduction of

the video recordings.

Affirmed in part, vacated in part, and remanded for further proceedings in

accordance with this opinion. We do not retain jurisdiction.

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