Pending Bill” “Aid in Dying for the Terminally Ill Act,”

Pending Bill” “Aid in Dying for the Terminally Ill Act,”

   The Assembly Judiciary Committee reports favorably and with committee amendments Assembly Bill No. 1504.

      As amended by the committee, this bill establishes the “Aid in Dying for the Terminally Ill Act,” which will allow an adult New Jersey resident, who has the capacity to make health care decisions and who has been determined by that individual’s attending and consulting physicians to be terminally ill, to obtain medication that the patient may self-administer to terminate the patient’s life.  Under the bill, “terminally ill” is defined to mean the patient is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less.

      In order for a terminally ill patient to receive a prescription for medication under the bill, the patient is required to make two oral requests and one written request to the patient’s attending physician for the medication.  The bill requires at least 15 days to elapse between the initial oral request and the second oral request, and between the patient’s initial oral request and the writing of a prescription for the medication.  The patient may submit the written request for medication either when the patient makes the initial oral request, or at any time thereafter, but a minimum of 48 hours are to elapse between the attending physician’s receipt of the written request and the writing of a prescription for medication.

      When a patient makes an initial oral request for medication under the bill’s provisions, the attending physician is required to provide the patient with information about the risks, probable results, and alternatives to taking the medication; recommend that the patient participate in a consultation concerning concurrent or additional treatment opportunities, palliative care, comfort care, hospice care, and pain control options; and refer the patient to a health care professional who is qualified to discuss those alternative care and treatment options. The patient may choose, but is not required, to participate in such consultation.  The attending physician is also required to recommend that the patient notify the patient’s next of kin of the request, but medication may not be denied if a patient declines, or is unable to, provide this notification.

      The attending physician is required to refer the patient to a consulting physician for the purpose of obtaining confirmation of the attending physician’s diagnosis.  Both the attending physician and the consulting physician are required to verify that the patient has made an informed decision when requesting medication under the bill.  When the patient makes the second oral request, the attending physician is to offer the patient an opportunity to rescind the request.  In addition, the attending physician is required to notify the patient that a request may be rescinded at any time and in any manner, regardless of the patient’s mental state.

      A patient may make a written request for medication, in accordance with the bill’s provisions, so long as the patient:  is an adult resident of New Jersey, as demonstrated through documentation submitted to the attending physician; is capable; is terminally ill, as determined by the attending physician and confirmed by the consulting physician; and has voluntarily expressed a wish to receive a prescription for the medication.

      The bill requires a valid written request for medication to be in a form that is substantially similar to the form set forth in the bill.  The bill requires the written request to be signed and dated by the patient and witnessed by at least two individuals who attest, in the patient’s presence, that, to the best of their knowledge and belief, the patient is capable and is acting voluntarily.

      The bill requires at least one of the witnesses to be a person who is not:

      (1)  a relative of the qualified patient by blood, marriage, or adoption;

      (2)  at the time the request is signed, entitled to any portion of the patient’s estate upon the patient’s death; 

      (3)  an owner, operator, or employee of a health care facility, other than a long term care facility, where the patient is receiving medical treatment or is a resident.

      The patient's attending physician may not serve as a witness.

      A written request form will be required to include an indication as to whether the patient has informed the patient’s next-of-kin about the request for medication and an indication as to whether concurrent or additional treatment consultations have been recommended by the attending physician or undertaken by the patient.

      If the patient complies with the bill’s oral and written request requirements, establishes State residency, and is found by both the attending physician and a consulting physician to be capable, to have a terminal illness, and to be acting voluntarily, the patient will be considered to be a “qualified terminally ill patient” who is eligible to receive a prescription for medication.  The bill expressly provides that a person is not be considered to be a “qualified terminally ill patient” solely on the basis of the person’s age or disability or the diagnosis of a specific illness, disease, or condition.

      If either the attending physician or the consulting physician believes that the patient may lack capacity to make health care decisions, the physician will be required to refer the patient to a mental health care professional, which is defined in the amended bill to mean a licensed psychiatrist, psychologist, or clinical social worker, for a consultation to determine whether the patient is capable.  If such a referral is made, the attending physician is prohibited from issuing a prescription to the patient for medication under the bill unless the attending physician has received written notice, from the mental health care professional, affirming that the patient is capable.

      Prior to issuing a prescription for requested medication, the attending physician is required to ensure that all appropriate steps have been carried out, and requisite documentation submitted, in accordance with the bill’s provisions.  The patient's medical record is to include documentation of:  the patient’s oral and written requests and the attending physician’s offer to rescind the request; the attending physician’s recommendation for concurrent or alternative care and treatment consultations, and whether the patient participated in a consultation; the attending physician’s and consulting physician’s medical diagnosis and prognosis, and their determinations that the patient is terminally ill, is capable of making the request, is acting voluntarily, and is making an informed decision; the results of any counseling sessions with a mental health care professional ordered for the patient; and a statement that all the requirements under the bill have been satisfied.

      A patient's request for, or the provision of, medication in compliance with the bill will not constitute abuse or neglect of an elderly person, and may not be used as the sole basis for the appointment of a guardian or conservator.  The bill specifies that a patient’s guardian, conservator, or representative is not authorized to take any action on behalf of the patient in association with the making or rescinding of requests for medication under the bill’s provisions, except to communicate the patient’s own health care decisions to a health care provider upon the patient’s request.  The bill prohibits any contract, will, insurance policy, annuity, or other agreement from including a provision that conditions or restricts a person’s ability to make or rescind a request for medication pursuant to the bill, and further specifies that the procurement or issuance of, or premiums or rates charged for, life, health, or accident insurance policies or annuities may not be conditioned upon the making or rescinding of a request for medication under the bill’s provisions.  An obligation owing under a contract, will, insurance policy, annuity, or other agreement executed before the bill’s effective date will not be affected by a patient’s request, or rescission of a request, for medication under the bill.

      Any person who, without the patient’s authorization, willfully alters or forges a request for medication pursuant to the bill, or conceals or destroys a rescission of that request, with the intent or effect of causing the patient's death, will be guilty of a crime of the second degree, which is punishable by imprisonment for a term of five to 10 years, a fine of up to $150,000, or both.  A person who coerces or exerts undue influence on a patient to request medication under the bill, or to destroy a rescission of a request, will be guilty of a crime of the third degree, which is punishable by imprisonment for a term of three to five years, a fine of up to $15,000, or both.  The bill does not impose any limit on liability for civil damages in association with the negligence or intentional misconduct of any person.

      The amended bill provides immunity from civil and criminal liability, from professional disciplinary action, and from censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action that is undertaken in compliance with the bill, including the act of being present when a qualified terminally ill patient takes the medication prescribed to the patient under the bill’s provisions.  As amended, the bill provides that this immunity also applies to any refusal to take actions in furtherance of, or to otherwise participate in, a request for medication made under the bill.  Any action undertaken in accordance with the bill will not be deemed to constitute patient abuse or neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide under any State law, and the bill expressly exempts actions taken pursuant to the bill from the provisions of N.J.S.2C:11-6, which makes it a crime to purposely aid a person in committing suicide.  These immunities will not apply to acts or omissions constituting gross negligence, recklessness, or willful misconduct.  Nothing in the bill is to be construed to authorize a physician or other person to end a patient's life by lethal injection, active euthanasia, or mercy killing.

      The bill amends section 1 of P.L.1991, c.270 (C.2A:62A-16), which establishes a “duty to warn” when a health care professional believes that a patient intends to carry out physical violence against the patient’s own self or against another person, in order to specify that that “duty to warn” provisions are not applicable when a qualified terminally ill patient requests medication under the bill.

      The bill requires a patient’s attending physician to notify the patient of the importance of taking the prescribed medication in the presence of another person and in a non-public place.  The bill specifies that, if any governmental entity incurs costs as a result of a patient’s self-administration of medication in a public place, the governmental entity will have a claim against the patient’s estate to recover those costs, along with reasonable attorney fees.

      The bill authorizes attending physicians, if registered with the federal Drug Enforcement Administration, to dispense requested medication, including ancillary medication designed to minimize discomfort, directly to the patient.  Otherwise, the attending physician may transmit the prescription to a pharmacist, who will dispense the medication directly to the patient, to the attending physician, or to an expressly identified agent of the patient.  Medication prescribed under the bill may not be dispensed by mail or other form of courier.   Not later than 30 days after the dispensation of medication under the bill, the health care professional who dispensed the medication will be required to file a copy of the dispensing record with the Division of Consumer Affairs (Division) in the Department of Law and Public Safety.

      Any medication prescribed under the bill, which the patient chooses not to self-administer, is required to be disposed of by lawful means.  Lawful means includes, but is not limited to, disposing of the medication consistent with State and federal guidelines concerning disposal of prescription medications or surrendering the medication to a prescription medication drop-off receptacle.  No later than 30 days after the patient’s death, the attending physician will be required to transmit documentation of the patient’s death to the Division.  The Division is required, to the extent practicable, to coordinate the reporting of dispensing records and records of patient death with the process used for the reporting of prescription monitoring information.  The Division will be required to annually prepare and make available on its Internet website a statistical report of information collected pursuant to the bill’s provisions; information made available to the public will not include personal or identifying information. 

      A health care facility’s existing policies and procedures will be required, to the maximum extent possible, to govern actions taken by health care providers pursuant to the bill.  Any action taken by a health care professional or facility to carry out the provisions of the bill is to be voluntary.  If a health care professional is unable or unwilling to participate in a request for medication under the bill, the professional will be required to refer the patient to another health care provider and provide the patient’s medical records to that provider.

      This bill was pre-filed for introduction in the 2018-2019 session pending technical review.  As reported, the bill includes the changes required by technical review, which has been performed.

COMMITTEE AMENDMENTS:

      The committee amendments clarify that patients are to be advised of both concurrent and additional treatment opportunities, as well as palliative care, comfort care, hospice care, and pain control, when making a request for aid in dying medication under the bill.

      The committee amendments provide that licensed clinical social workers will be permitted to make a determination as to whether a patient has the capacity to make health care decisions; as introduced, the bill provided that only licensed psychiatrists and psychologists could make this determination.  The committee amendments additionally add a new definition of “mental health care professional,” which includes licensed psychiatrists, psychologists, and clinical social workers, and add a provision requiring the State Board of Social Work Examiners to adopt rules and regulations to implement the provisions of the bill.  The committee amendments remove references concerning the referral of a patient to a mental health care professional if the attending or consulting physician thinks the patient may have a psychiatric or psychological disorder or depression that causes impaired judgment; as amended, the bill provides for such referrals when the attending or consulting physician thinks the patient may lack the capacity to make health care decisions.  The bill removes a definition of “counseling,” and various references to the term, that are obviated by these amendments.  

      The committee amendments revise the definition of “self-administer” to clarify that the term will not be limited to ingesting the aid in dying medication, but will instead apply to the physical administration of the medication to the patient’s own self.

      The committee amendments remove a provision that would have required that, if the patient is a resident in a long term care facility, a designated staff member of the facility is required to be one of the witnesses to the patient’s written request.  The committee amendments further provide an exception to the prohibition against an owner, operator, or employee of a health care facility from being a witness to the patient’s written request, to provide that this prohibition will not apply when the patient is a resident of a long term care facility.  The bill defines “long term care facility” to mean a licensed nursing home, assisted living residence, comprehensive personal care home, residential health care facility, or dementia care home.

      The committee amendments remove certain language concerning when a patient has provided written consent for the patient’s attending physician to contact a pharmacist regarding a prescription for aid in dying medication; the bill expressly provides elsewhere that the patient may provide such written consent when completing the written consent form, making the additional reference to the consent redundant. 

      The committee amendments clarify that the means of lawfully disposing of unused aid in dying medication may include disposal consistent with State and federal guidelines concerning the disposal of prescription medications or surrender to a prescription medication drop-off receptacle.

      The committee amendments provide that, in addition to immunity from civil and criminal liability and professional disciplinary action, a person may not be subject to censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action taken in compliance with the bill.  The committee amendments further provide that these protections also apply to the refusal to take any action in furtherance of, or to otherwise participate in, a request for medication under the bill.

      The committee amendments clarify that, in addition to not constituting patient abuse or neglect, suicide, assisted suicide, mercy killing, or homicide, actions taken in connection with a request for medication under the bill will not constitute euthanasia.  

      The committee amendments provide that, in addition to not providing the sole basis for the appointment of a guardian or conservator, a patient’s request for, or the provision of, medication under the bill will not constitute abuse or neglect of an elderly person.

      The committee amendments provide that the immunities and protections established under the bill do not apply to acts or omissions that constitute gross negligence, recklessness, or willful misconduct.

Medicaid denied where complete verification of assets not provided J.H., v IVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, Respondent-Respondent, and OCEAN COUNTY BOARD OF SOCIAL SERVICES,

Medicaid denied where complete verification of assets not provided J.H.,

        Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

        Respondent-Respondent,

and

OCEAN COUNTY BOARD OF SOCIAL SERVICES,

        Respondent.


              Submitted February 6, 2018 – Decided February 21, 2018

              Before Judges Carroll and Leone.

              On appeal from the Department of Human
              Services, Division of Medical Assistance and
              Health Services.

              SB2 Inc., attorneys for appellant (Ada Sachter
              Gallicchio, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Lauren S. Kirk,
              Deputy Attorney General, on the brief).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-2147-16T3


PER CURIAM

     J.H. appeals the November 23, 2016 final agency decision of

the Division of Medical Assistance and Health Services (DMAHS)

that denied her application for Medicaid benefits.         We affirm.

     J.H. submitted an application for Medicaid benefits to the

Ocean County Board of Social Services (OCBSS) on February 22,

2016.   That same day, OCBSS provided a letter to J.H. requesting

documentation     and    verification   required    to   determine       her

eligibility.

     On February 26, 2016, OCBSS sent J.H. a notice requesting the

following information: (1) verification of a $159.83 payment to

Allstate and the policy's cash surrender value if it was a life

insurance policy; (2) current statements for a Wells Fargo checking

account, and verification for twenty-one designated payments and

cash withdrawals totaling more than $14,000 during the period

between February 8, 2012, and November 30, 2015; (3)            the listing

agreement for J.H.'s home; (4) information regarding the purpose

of a separate $334.75 payment; and (5) "[a]ny and all pertinent

verifications of all resources solely or jointly owned (bank

accounts, C.D.'s, stocks, bonds, money markets, 401K's, IRA's,

annuities,     trusts,   cash   surrender   value   of   life    insurance

policies, etc.) opened or closed in the last [five] years prior

to application in addition to the accounts listed above."                The

                                    2                               A-2147-16T3
 notice advised J.H. of the name and phone number of the OCBSS

representative J.H. could call "if [she] ha[d] any questions

regarding this matter."       Finally, the notice instructed J.H. her

application could be denied if she failed to furnish the requested

information by March 7, 2016.

     On March 7, 2016, OCBSS sent J.H. another notice advising

that her application could be denied if she failed to supply the

information by March 21, 2016.       On March 21, 2016, OCBSS sent J.H.

a "final notice," again requesting information concerning bank

accounts and insurance policies.          J.H. was instructed to supply

the information by April 4, 2016, or OCBSS "may take action to

deny" her application.      As with the prior notices, OCBSS provided

J.H. with the name and phone number of its representative to call

if she had any questions.         On April 13, 2016, J.H.'s application

for Medicaid was denied for non-compliance with the February 26,

March 7, and March 21, 2016 notices.

     At J.H.'s request, a hearing was conducted concerning the

denial   of   her    application.         On   September   30,    2016,    an

Administrative      Law   Judge   (ALJ)   issued   an   Initial    Decision

affirming the denial of Medicaid benefits to J.H.          In his written

opinion, the ALJ determined:

               The issue in this case is whether [OCBSS]
          appropriately denied [J.H.'s] application
          when she did not provide the requested

                                      3                             A-2147-16T3
             information by April 4, 2016.     42 C.F.R. §
            435.912(c)(3)    and  N.J.A.C.    10:71-2.3(a)
            provide that the agency has forty-five days
            to render a decision on eligibility for an
            applicant who is not applying on the basis of
            disability.    In the present case, [OCBSS]
            advised [J.H.] a number of documents and
            explanations were requested.     There is no
            dispute that those documents were not received
            on time and one [was received] after the
            application had been denied.     In addition,
            some of the verifications were not provided
            at all because there were no records produced
            regarding the commingled bank account.

       The ALJ also rejected J.H.'s argument that OCBSS should have

assisted her in securing the requested information.            The ALJ found

J.H. never requested assistance and that at all times OCBSS dealt

only    with   J.H.'s   authorized     representative    at    Future     Care

Consultants.

       On administrative appeal to the DMAHS, the Director reviewed

the record, including the ALJ's Initial Decision, and adopted the

findings and conclusions of the ALJ in their entirety.                     The

Director    concluded   "[t]he   credible     evidence   in     the     record

demonstrates that [J.H.] failed to provide the needed information

prior to the April 13, 2016 denial of benefits.                Without this

information,    OCBSS   was   unable     to   complete   its    eligibility

determination and the denial was appropriate."

       On appeal, J.H. contends DMAHS's final decision was arbitrary

and capricious.    Specifically, she argues: (1) the ALJ was biased


                                     4                                A-2147-16T3
 against her; (2) the ALJ failed to provide an analysis as part of

his decision; (3) OCBSS violated her due process rights by failing

to provide adequate notice of the denial; and (4) OCBSS failed to

offer her the necessary assistance with her Medicaid application.

     We review an agency's decision for the limited purpose of

determining    whether   its    action      was   arbitrary,   capricious    or

unreasonable.   "An administrative agency's decision will be upheld

'unless there is a clear showing that it is arbitrary, capricious,

or unreasonable, or that it lacks fair support in the record.'"

R.S. v. Div of Med. Assistance and Health Servs., 
434 N.J. Super.
 250, 261 (App. Div. 2014) (quoting Russo v. Bd. of Trs., Police &

Firemen's Ret. Sys., 
206 N.J. 14, 25 (2011)).                  "The burden of

demonstrating that the agency's action was arbitrary, capricious

or   unreasonable    rests      upon       the    [party]   challenging     the

administrative action."        E.S. v. Div. of Med. Assistance & Health

Servs., 
412 N.J. Super. 340, 349 (App. Div. 2010) (alteration in

original) (quoting In re Arenas, 
385 N.J. Super. 440, 443-44 (App.

Div. 2006)).

     "Medicaid is a federally-created, state-implemented program

that provides 'medical assistance to the poor at the expense of

the public.'"   Matter of Estate of Brown, 
448 N.J. Super. 252, 256

(App Div.) (quoting Estate of DeMartino v. Div. of Med. Assistance

& Health Servs., 
373 N.J. Super. 210, 217 (App. Div. 2004); 42

                                       5                              A-2147-16T3
 U.S.C.A. § 1396-1), certif. denied, 
230 N.J. 393 (2017).                  To

receive federal funding, the State must comply with all the federal

statutes and regulations.     Harris v. McRae, 
448 U.S. 297 (1980).

     In New Jersey, the Medicaid program is administered by DMAHS

pursuant to the New Jersey Medical Assistance and Health Services

Act, 
N.J.S.A. 30:4D-1 to -19.5.           "In order to be financially

eligible,   the   applicant   must   meet   both   income   and   resource

standards."   Brown, 
448 N.J. Super. at 257 (citing N.J.A.C. 10:71-

3.15).   The county welfare boards evaluate eligibility.           Through

those county agencies, DMAHS serves as a "gatekeeper to prevent

individuals from using Medicaid to avoid payment of their fair

share for long-term care."       W.T. v. Div. of Med. Assistance &

Health Servs., 
391 N.J. Super. 25, 37 (App. Div. 2007) (citing


N.J.S.A. 30:4D-1 to -19.1).

     DMAHS's regulations establish "policy and procedures for the

application process."    N.J.A.C. 10:71-2.2(b).      The county welfare

boards exercise "direct responsibility in the application process

to . . . [r]eceive applications."         N.J.A.C. 10:71-2.2(c).       They

also "[a]ssure the prompt and accurate submission of eligibility

data."   N.J.A.C. 10:71-2.2(c)(5).       The regulations establish time

frames to process an application, with the "date of effective

disposition" being the "effective date of the application" where

the application has been approved.        N.J.A.C. 10:71-2.3(b)(1).

                                     6                             A-2147-16T3
        Under both federal and New Jersey law, except in unusual or

exceptional     circumstances,    Medicaid    eligibility    determinations

must    be     made   within     forty-five    days.         42    C.F.R.     §

435.912(c)(3)(ii); N.J.A.C. 10:71-2.3(a). Examples of exceptional

cases where the forty-five day period can be enlarged include:

             1. Circumstances wholly within the applicant's
             control; [or]

             2. A determination to afford the applicant,
             whose   proof   of   eligibility    has   been
             inconclusive, a further opportunity to develop
             additional evidence of eligibility before
             final action on his or her application[.]

             [N.J.A.C. 10:71-2.3(c)(1)-(2).]

       Here,   DMAHS's   final   agency   decision     was   not   arbitrary,

capricious or unreasonable.          J.H. does not dispute that: her

application for Medicaid was filed on February 22, 2016; she was

given four opportunities to provide the information necessary to

determine her eligibility for benefits; she did not timely submit

all the required information; and she never requested additional

time.    When the verifying information was not timely provided,

DMAHS properly denied the application.         DMAHS was correct to deny

an application that did not have the information necessary to

verify eligibility because Medicaid is intended to be a resource

of last resort and is reserved for those who have a financial or




                                     7                                A-2147-16T3
 medical need for assistance.    See N.E. v. Div. of Med. Assistance

& Health Servs., 
399 N.J. Super. 566, 572 (App. Div. 2008).

     J.H. has failed to demonstrate any unusual or exceptional

circumstances that would warrant a continuation of her eligibility

determination    beyond   the   normal   forty-five   day   deadline.

Moreover, contrary to J.H.'s argument, the notice of denial was

adequate because it stated it was for non-compliance, it identified

the contact letters to which plaintiff failed to respond, and the

letters detailed the information requested.    While J.H. complains

OCBSS failed to assist her in obtaining the information necessary

to complete her Medicaid application, the record is devoid of any

indication that either J.H. or her authorized representative ever

sought such assistance.

     After carefully reviewing the record and the applicable legal

principles, we conclude that J.H.'s further arguments are without

sufficient merit to warrant discussion in a written opinion, Rule

2:11-3(e)(1)(E), and that the agency's decision is supported by

sufficient credible evidence in the record.     R. 2:11-3(e)(1)(D).

     Affirmed.




                                  8                           A-2147-16T3

Court here rejects undue influence where no expert Estate of Mary Patricia Molinsk

IN THE MATTER OF THE

ESTATE OF MARY PATRICIA
MOLINSKI.
______________________________

Submitted January 16, 2018 – Decided February 6, 2018

          Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Essex County, Docket No. CP-0120-2016. 
unreported SUPERIOR COURT OF NEW JERSEY

                              APPELLATE DIVISION
                              DOCKET NO. A-4722-15T2

          Diana Marsh, appellant pro se.

Cammarata, Nulty & Garrigan, LLC, attorneys for respondent Edward Molinski, Executor of the Estate of Mary Patricia Molinski (John P. Nulty, Jr., on the brief).
PER CURIAM
Diana Marsh contests the 2012 will of her mother, Mary
Patricia Molinski, who died on October 22, 2015, at the age of seventy-six. Molinski had a son, Edward M. Molinski, and three daughters, Marsh, Janice Palmeri, and Donna McWilliams. The testator left her entire estate, net of expenses, to her son, and Palmeri; and nothing to Marsh and McWilliams.

Marsh contends Palmeri unduly influenced their mother; or, alternatively, their mother lacked testamentary capacity. After a summary hearing, see R. 4:83-1 and R. 4:67-1, the Probate Part dismissed Marsh's verified complaint with prejudice. Having carefully reviewed the record and the applicable legal principles, we affirm, substantially for the reasons set forth in Judge Walter Koprowski's thorough oral opinion.
We add the following brief comments. Marsh focuses her appellate argument on the omission of any mention of her or McWilliams in their mother's will. The will did not include a provision expressly disinheriting them. Rather, it included a bequest "to my beloved daughter, JANICE PALMERI, and my beloved son, EDWARD M. MOLINSKI, in equal shares, share and share alike, provided they survive me."1 Marsh contends the law requires that a will expressly name disinherited children, in order to be effective.
We have found no support for that assertion, and Marsh provides none. Rather, the omission of disinherited children's names in a will is at best, circumstantial evidence that the testator did not actually or freely intend to disinherit them.
1 The will also stated that if Palmeri or Molinski predeceased her – which they did not – then that child's share would pass per stirpes to their children, whom the testator named after describing them as "[m]y beloved grandchildren."

2

A-4722-15T2

However, that evidence and the other evidence Marsh presented – as Judge Koprowski ably reviewed – was insufficient to vault Marsh's high burden to establish undue influence or lack of capacity. See In re Estate of Stockdale, 196 N.J. 275, 303 (2008) (stating that the will's opponent generally bears the burden to prove undue influence); In re Niles Trust, 176 N.J. 282, 300 (2003) (stating that "undue influence, as a form of fraud, must be proven by clear and convincing evidence"); see also Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981) (stating that it is presumed a testator was competent and of sound mind when he or she executed the will); In re Livingston's Will, 5 N.J. 65, 71 (1950) (same).
The attorney who drafted the will certified he met the testator for the first time when she sought his services in 2012. She found his name in a church bulletin. He had no relationship with the will's beneficiaries. He stated the testator simply did not disclose she had children other than Palmeri and Molinski. Had she done so, he would have counseled her to include a provision expressly addressing the disinherited children.
Nonetheless, the attorney stated he did not believe the testator's omissions resulted from incapacity or undue influence. He noted the testator appeared at his office alone; she responded cogently and appropriately to questions put to her; articulated

3

A-4722-15T2

her desires clearly; and did not appear to lack mental capacity or to be under another's influence.
Marsh provided no expert medical evidence, or the certification of anyone who actually observed her mother, to establish that her mother was suffering from a mental defect or an incapacity of the mind. By contrast, Palmeri, Molinski, and the will's drafter all certified that she was of sound mind when or around the time she made her will.
As for Marsh's claim of undue influence, she relies primarily on allegations that she maintained a loving relationship with her mother (a fact disputed by her siblings, but one the court presumed in her favor); her sister was strong-willed and opinionated; and there is no other explanation for her disinheritance. That is not enough.
"Not all influence is 'undue' influence." Livingston's Will, 5 N.J. at 73. Even if Palmeri urged her mother to favor her and her brother – which Palmeri denied – "[p]ersuasion or suggestions . . . will not suffice." Ibid. A will opponent must establish influence "such as to destroy the testator's free agency and to constrain him [or her] to what he [or she] would not otherwise have done in the disposition of his [or her] worldly assets." Ibid.

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We recognize the burden may shift to a will's proponent to prove the absence of undue influence, if the opponent first establishes that "the will benefits one who stood in a confidential relationship to the testatrix"; and "there are additional circumstances of a suspicious character present which require explanation." In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). However, Marsh did not meet that threshold showing.
"[T]he mere existence of family ties does not create . . . a confidential relationship," Vezzetti v. Shields, 22 N.J. Super. 397, 405 (App. Div. 1952), notwithstanding that "[a]mong the most natural of confidential relationships is that of parent and child." Pascale v. Pascale, 113 N.J. 20, 34 (1988). Marsh was required to show there was dominance of one party over the other, or inequality of dealing. See Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402 (App. Div. 2007). She failed to do so. Cf. Haynes, 87 N.J. at 176 (finding a confidential relationship between a mother and child where the mother was "afflicted by the debilitations of advanced years, was dependent upon her sole surviving child with whom she lived and upon whom she relied for companionship, care and support").
No doubt, the unanticipated disinheritance of a child must sting. In search of an explanation, it is understandable that the child may contend the act was a product of undue influence.

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However, to set aside the solemn directions of a testator, who cannot speak in defense of her wishes, a greater showing is required than Marsh has presented here.
Affirmed.