If You File a Lousy Will Contest Case, You Are Not Entitled to Counsel Fees and Costs

HNWWill Contest and Probate Litigation

  • Will contest

    NJ law does not allow an automatic award of counsel fees to an unsuccessful plaintiff in a will contest.

  • NJ law does allow an award of counsel fees if there is a reasonable basis to contest the will.

A recent NJ case again affirmed the title of this blog, namely you need to have a reasonable basis to challenge a Last Will.  Here the defendant daughter challenged the probate of the estate of her late mother.  She claimed her mother’s Last Will and Testament did not bequeath to her a share of the estate because her mother was suffering from diminished mental capacity caused by terminal stomach cancer.  As a result, mom was her susceptible to the undue influence of her brothers.  Mom’s will directed that her estate was to be equally divided among her several sons and that her two daughters were to be excluded from receiving any share of the estate “for reasons known to each of them”.

After a seven-day trial, the Chancery Judge dismissed the challenge with prejudice, finding there was nothing suspicious about Mom’s execution of her will.  The judge explained there was no evidence that the “strong-willed” mother was feeble and not thinking clearly when she met with a lawyer – recommended by a friend and unknown by the parties – to prepare and then execute her will. The judge found there was no evidence that Mom was influenced by plaintiffs to leave the entirety of her estate to them and disinherit her daughter(s).  The judge noted plaintiffs had taken care of their “dying mother,” whereas the daughter had “alienated” her mother before she became ill and had not spoken to her in the three years before her death. As further indication of the daughter/mother estrangement, the judge found that from the day she became aware of her mother’s terminal illness until the day her mother died, she did not visit or call her, nor did she write to her. She also did not attend her mother’s funeral service, including the wake or burial, despite being invited by her siblings.

Despite her unsuccessful challenge, this self-absorbed daughter filed a Rule 4:42-9(a)(3) motion to have the estate pay her attorneys’ fees of $87,018.75 and costs of $2,874.54.  The trial judge, applying In re Reisdorf, 80 N.J. 319 (1979), denied the request, finding she failed to establish “reasonable cause” for contesting her mother’s will and it would be unfair for the estate to pay her attorneys’ fees and costs.

On appeal, the Appeal Court re-emphasized the rule that filing a lousy will contest case will not be rewarded.  A “[F]ee determination by a trial judge will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.”

One Exception to the No Counsel Fee Rule

Unless a will contest case is a weak and/or frivolous, courts will normally allow counsel fees to both the proponent and contestant in a will dispute.”

An unsuccessful contestant is entitled to costs when he or she shows “reasonable cause” for bringing a probate challenge, defined as a belief that “rested upon facts or circumstances sufficient to excite in the probate court an apprehension that the testator lacked mental capacity or was unduly influenced.”

In this case, the trial court’s denial of attorneys’ fees and costs did not constitute an abuse of discretion.  There was no reasonable cause for the will challenge and, thus, the estate was not responsible for her attorneys’ fees and costs.

To discuss your NJ probate litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate and Probate Litigation Attorney

Previous PostNext Post