Category Archives: Attorneys Fees in Probate Action

Appellate Division reversed trial court’s decision to invoke in terrorem clause and assess counsel fees

Posted on March 1, 2013 by Kelaher, Van and Moriarty

On February 1, 2013, in the Matter of the Estate of Lucille Sand, Docket No. A-4524-10T4, the New Jersey Appellate Division reversed the trial court’s decision as to the invocation of the in terrorem clause of the Decedent’s will and assessment of counsel fees. By way of background, the Decedent executed a Will on December 4, 2002and a codicil on February 2, 2005.  The Decedent died on March 12,  leaving four children.  The Plaintiff brought suit naming her three siblings as Defendants, and also filed a caveat alleging undue influence, fraud, lack of testamentary capacity and forgery.  Two siblings filed to have the Will admitted to probate and to be appointed co-executrices.  The probate judge granted summary judgment in favor of the defendants and ordered the Will and codicil admitted to probate. The Plaintiff then filed a nine-count Complaint in the Family Part using fictitious names for all the parties.  She alleged that her mother’s will breached a prenuptial agreement, sought past and present child support and alleged embezzlement and fraud.  She also alleged her mother stole and misused funds left to her by her father and grandmother.  She alleged that one sister committed a tort because of an arrest and conviction … Continue reading →

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When an issue becomes moot, dismissal is appropriate no matter the stage of the litigation

Posted on February 24, 2013 by Kelaher, Van and Moriarty

On January 28, 2013, In the Matter of Fred Rizzo, A-2997-11T4, the Appellate Division considered the issue of attorneys’ fees in a guardianship action. By way of background, in 2007, Fred Rizzo appointed his son, Douglas power of attorney.  In May 2011, the Bergen County Board of Social Services filed a Complaint for guardianship.  The court appointed an attorney to represent Fred Rizzo, and that attorney thereafter incurred reasonable fees.  Ultimately, the court appointed Douglas as guardian for his father.  The court also ordered that Douglas was personally liable for his father’s attorneys’ fees. In its decision, the court relied on R.4:86-4, which states: “The compensation of … appointed counsel … may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.” R. 4:86-4(e). Fred owned no liquid assets.  His only asset was the equity in his house in which he, Douglas, and Douglas’s family resided.  His only income was his monthly Social Security payment. The court stated it would be inequitable to force his attorney to wait until Fred’s death if the estate did not have sufficient funds to pay his fees. … Continue reading →

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Court denies counsel fees to an unsuccessful contestant in a probate litigation matter

Posted on September 1, 2012 by Kelaher, Van and Moriarty

   On July 11, 2012, In the Matter of the Estate of Schmidt, Superior Court ofNew Jersey, Appellate Division, Docket No. A-0210-11T2, onJuly 11, 2012, the Court affirmed the trial court’s decision to deny counsel fees to an unsuccessful contestant in a probate litigation matter.    In Schmidt, the defendant, who was the decedent’s nephew, had power of attorney for the decedent.  After the decedent’s death, her niece filed a Complaint to compel an accounting of the nephew’s actions as POA.     The nephew provided an informal accounting, the niece filed a motion to enforce litigant’s rights relating to the accounting.     By way of background, the nephew was the sole residuary beneficiary and maintained – throughout the litigation – that there were sufficient funds to satisfy the niece’s $20,000 specific bequest.  Nevertheless, the Court permitted the niece to press on with her Complaint, based on the theory that if she had established wrongdoing on the nephew’s part, she could recoup her fees.     The trial judge noted that the POA kept poor records and made various checks payable to cash, including in payment of home health aides; however, the court found that such actions were for the benefit of the decedent … Continue reading →

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Court denies attorneys’ fees where deficient guardianship pleadings are withdrawn

Posted on August 31, 2012 by Kelaher, Van and Moriarty

   In the Matter of the Estate of Booker, Superior Court of New Jersey, Appellate Division, A-0382-11T2, the Court denied an application for attorneys’ fees.      Here, the decedent died intestate.  His sole heir was an adult son.  As such, the decedent’s mother retained an attorney to file an action seeking, among other relief, the creation of a special needs trust for her grandson (the decedent’s son).  Also, she sought, in a separate action, to be appointed guardian for her grandson.     Approximately six (6) months following the filing of the Complaints, the decedent’s mother discharged her attorney.  She also withdrew the guardianship application – filed by the attorney – because it was deficient on its face, not even having the requisite affidavits from two medical doctors.  Furthermore, the guardianship action was improperly filed in New Jersey because the alleged incapacitated person was a resident of Pennsylvania, and therefore, the proper venue would have been in Pennsylvania.  The trial court also noted that the plaintiff (decedent’s mother) had not demonstrated how her actions aided in preserving or protecting the fund in court.  Rather, quite to the contrary, the Court was concerned by allegations of possible misappropriation of the estate assets … Continue reading →

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The Court’s duty in probate matters is to ascertain and give effect to the probable intention of the testator

Posted on August 29, 2012 by Kelaher, Van and Moriarty

   Recently, in the Matter of the Estate of Catherine Hoch, on appeal from the Superior Court of New Jersey, Chancery Division,MercerCounty, Docket No. 09-00532, the Appellate court examined the issue of the probate of a Will with cross-outs and additions.     By way of background, the decedent signed a Will datedApril 1, 1999, which included gifts to a niece and a nephew.  The Will also had numerous specific bequests to charitable organizations.  Subsequent to the execution of the Will, the decedent made extensive cross-outs and alterations in handwriting to the Will, some of which revisions dealt with the gifts to the niece and the nephew and the removal of several of the charities.  The residual beneficiary was also changed by her handwriting.  The decedent also changed the name of the document from a last will and testament to a living trust.  On the Will backer, she wrote “Void” and added “Final Living Trust4/20/2002.”    While in a nursing home, the decedent asked her friend, who was the named executor, to retrieve her Will from her home and bring it to her in the nursing home.  When her friend expressed concern over the handwritten cross-outs and alterations, the decedent told … Continue reading →

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