Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen & Associates,
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Wednesday, July 18, 2012

N.J.S.A. 3B:3-2 - Wills

                      N.J.S.A. 3B:3-2 provides that,
a. Except as provided in [N.J.S.A.] 3B:3-3, a will shall be:

(1) in writing;

(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.

b. A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.

c. Intent that the document constitutes the testator's will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator's handwriting.

            Moreover, in In re Probate of Last Will and Testament of Catelli, 361 N.J. Super. 478 (App. Div. 2003), we stated that we appreciated
the trial judge's concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature.

[Id. at 483-84.]

needham v. hobbs

                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-6219-10T1








Telephonically Argued February 22, 2012 – Decided March 14, 2012

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-378-07.

Christie R. Nastasi argued the cause for appellants (Hoffman DiMuzio, attorneys; Ms. Nastasi, on the brief).

James J. Breslin, III, argued the cause for respondent (Law Offices of Barnaba & Marconi, attorneys; Mr. Breslin, on the brief).


            Plaintiff William Needham was injured when his automobile collided with an automobile driven by defendant Marcey A. Hobbs, who was a mourner in a procession being led by a funeral home through Delran on March 7, 2005.  Based on pre-filing research, plaintiffs assumed that W.R. Woody Funeral Home, Inc. (Woody) was leading the funeral procession and it was not until approximately four years after the accident that plaintiffs determined that the procession was led by May Funeral Homes, Inc. (May).  After permitting plaintiffs to replace a fictitious defendant with May, the trial judge granted May's motion to dismiss, holding that plaintiffs did not exercise due diligence in discovering May's identity and that May would be prejudiced by the late amendment.  Because the record supports plaintiffs' claim of due diligence and because there was insufficient evidence to support the judge's conclusion that May would be prejudiced if the action were to continue against it, we vacate the order of dismissal and remand for further proceedings.
            Plaintiff commenced this action on March 5, 2007, nearly two years after the automobile accident in question.  A police report prepared after the accident suggested that Hobbs was in a funeral procession traveling south on Route 130 in Delran.  Needham was waiting at a light at Route 130's intersection with Chester Avenue.  Apparently, when the light turned green, Needham's automobile proceeded into the intersection and collided with Hobbs's automobile.  The record on appeal provides little other information about the accident.[1]
            In their original complaint, plaintiffs named Hobbs and Woody as defendants, as well as fictitious persons and entities.  Prior to filing the complaint, plaintiffs' counsel determined that Woody had conducted a funeral procession on Route 130 on the day in question.  In answering the complaint, Woody denied the allegation that it was "the funeral home responsible for organizing and supervising the funeral procession" in which Hobbs was a participant because that allegation constituted "a conclusion of law."  In its answer, Woody claimed insufficient knowledge to either admit or deny the complaint's other chief allegations.  The depositions of four individuals who worked the funeral procession for Woody on the date in question were taken in March 2008.  These four Woody employees testified they were unaware that a vehicle in their procession was in an accident.
            Hobbs made no appearance in the case.  Default was entered against her and she did not respond to a subpoena seeking her testimony.  Without information from Hobbs and without affirmative proof from Woody that it did not lead the procession in question, plaintiffs continued to assume that all necessary parties were before the court.  Interestingly, in March 2009, an arbitrator found Hobbs 65%, Needham 25%, and Woody 10% responsible for the accident.  Apparently, Woody was unable or made no attempt to demonstrate at that time that it had no involvement in the procession.
            Hobbs finally, on June 12, 2009, appeared for a deposition and provided the name of the decedent whose funeral she had attended on the day in question.  As a result, plaintiffs' counsel was able to determine that May and not Woody had conducted the funeral procession.  Plaintiffs thereafter consented to a dismissal of the action against Woody and moved for leave to replace one of the fictitious defendants with May.  Leave was granted on July 1, 2009.  May moved for dismissal.  For reasons set forth in a written decision, the trial judge granted the motion and, once finality was achieved, plaintiffs appealed.[2]
            Plaintiffs' appeal turns on whether the filing of the amended pleading, in which May was first named as a defendant, should "relate back" to the date the original complaint was filed.  See, e.g., Greczyn v. Colgate Palmolive, 183 N.J. 5, 11 (2005); Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120 (1973).  Rule 4:26-4 allows a plaintiff to commence an action "against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification."  There is no doubt that plaintiffs complied with this aspect of the Rule.  The Rule, however, may be invoked "only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint."  Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003).  In seeking dismissal, May asserted that plaintiffs failed to act with due diligence and that it would be prejudiced if the action were permitted to continue.
            In vacating the order of dismissal, we first conclude that the record supports plaintiffs' argument that they exercised due diligence in seeking to learn the name of the funeral home that was conducting the procession.  That investigation uncovered the fact that Woody conducted a funeral procession south on Route 130 on the day in question; it was logical for plaintiffs to assume that Woody was the proper funeral home to be named.  In fact, that conclusion was further cemented by Woody's response to the complaint.  Woody neither admitted nor denied its involvement in the funeral procession in question.  And four Woody employees, who worked a funeral procession on that day, took that same position.  Pending clearer evidence, plaintiffs remained justified in proceeding against Woody, a fact further suggested by an arbitrator's determination that Woody was 10% responsible for the accident.  Plaintiffs were entitled to adhere to their belief that Woody was the correct funeral home until Hobbs, who had permitted the case to proceed in her absence, finally came forward to give deposition testimony.  Once her testimony revealed the facts necessary to exonerate Woody and implicate May, plaintiffs expeditiously moved for leave to join May as a party.
            Plaintiffs' due diligence alone, however, is insufficient to justify reliance on the relation-back doctrine.  The dismissal of May was appropriate if May would be prejudiced by the late assertion of the claim.  The prejudice to which the Rule concerns itself is not a defendant's exposure "to potential liability for a lawsuit after the statute of limitations has run."  Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 631 (App. Div. 1997).  "[A]bsent evidence that 'the lapse of time has resulted in a loss of evidence[,] impairment of ability to defend' or 'advantage' to plaintiffs, '[j]ustice impels strongly towards affording the plaintiffs their day in court on the merits of their claim[.]'"  Claypotch, supra, 360 N.J. Super. at 482 (quoting Farrell, supra, 62 N.J. at 122).  On this aspect, the trial judge stated only the following:
Surely, the memories of the witnesses as to the occurrence have faded in the intervening years.  Further, the late amendment has prejudiced May Funeral Homes by preventing it from participating in meaningful discovery.

These conclusions were not based on any sworn information; the judge simply assumed memories had faded and May's ability to respond to plaintiffs' allegations would be unduly hampered.
            We conclude that the trial judge prematurely found prejudice.  Indeed, an understanding of the prejudicial effect of the late joinder is not entirely clear because the matter has not been examined in light of the nature of plaintiffs' claim against May.  The extent to which a funeral home may be liable for accidents involving an automobile in a funeral procession has not been widely considered.  See Ronald Schmidt, Liability for Injury or Damages Resulting from Operation of Vehicle in Funeral Procession or in Procession Which Is Claimed to Have Such Legal Status, 52 A.L.R.5th 155 (1997).  We considered the question in Giantonnio v. Taccard, 291 N.J. Super. 31, 41 (App. Div. 1996), concluding that, in "undertaking to organize and lead [a] funeral procession," a funeral home "arguably owe[s] a duty to refrain from creating an unreasonably hazardous condition for those participating in the procession."  We made no attempt, however, to further define the scope of liability.  Id. at 42 (stating that "[w]e offer no opinion respecting the substantive content of that duty, i.e., the standard of care owed by the funeral home").
            We have not since considered that standard of care nor need we do so here.  Our holding is limited to recognizing that the extent to which May may be prejudiced by its late joinder is inexorably linked to its ability to defend on the question of whether it owed a duty to plaintiffs and, if so, what that duty might be.  Until that question is addressed and adequately answered, any conclusion as to whether May would be prejudiced by the continuation of the suit is merely speculative.
            The second aspect of the judge's determination that May would be prejudiced by the late joinder -- i.e., May was prevented from engaging in meaningful discovery -- is within the judge's power to remedy.  Although discovery end dates are important, a judge remains empowered when justice requires to take appropriate steps to prevent a party from being prejudiced notwithstanding the age of the case or other court-imposed barriers.  Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003); see also Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 93 (App. Div. 2007); Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005).  If, upon further examination, the judge finds no other basis for concluding that May will be prejudiced, May should be permitted a reasonable period of time to conduct whatever discovery may be appropriate in light of these circumstances. 
            Absent a finding that May would be prejudiced in the manner discussed above, "[j]ustice impels strongly towards affording the plaintiffs their day in court on the merits of their claim[.]"  Farrell, supra, 62 N.J. at 122.
            The order of dismissal is vacated and the matter remanded for further proceedings in conformity with this opinion.  We do not retain jurisdiction.

[1]After the complaint was dismissed as to May, the remainder of the case settled.
[2]We denied plaintiffs' earlier motion for leave to appeal.  As noted earlier, the remaining parties settled and plaintiffs filed this appeal.