I recently received a contested probate case which appealed the trial judge’s award of attorney’s fees and costs to the parties following a lengthy trial.
Background of Case
Following the death of their mother and father, their respective wills named their son as the executor for both estates. This son probated both wills without challenge from any of the decedents’ other children. Several years later, several siblings accused their brother of misappropriating assets of the estates and filed legal action to remove him as the executor for their parents’ estates. They requested that another child be appointed as the administrator of the estates. The probate judge removed the son as executor and appointed his brother as substitute administrator. In the same order, the judge directed the original executor son to account for the estates as required under N.J.S.A. 3B:14-7.
At the time of his removal, executor brother claimed that he oversaw his parents’ estates to near conclusion and had prepared an informal account of the estates. However, he failed to file a formal accounting for the estates. During that time period, his sibling filed several enforcement applications, seeking to compel executor brother to file a formal estate accounting. In response to the substitute brother’s accounting during the time period that he served as the substitute administrator CTA, each brother filed separate exceptions to the other’s accounting.
Thereafter final accounting was filed with the court and exceptions were again made by several of the children/beneficiaries. The arguments focused on the payment of attorney’s fees and the award of commissions and costs payable from the estates. At the conclusion of the arguments, the probate judge stated that she would review the certifications of attorney’s services filed by all counsel before rendering a decision.
The court discusses the issue of awarding counsel fees to a contested probate accounting case
The probate judge wrote that counsel fees were a primary disputed issue in the case since both parties wanted to have their counsel fees paid from the estates for any and all work performed by their attorneys while each of them served as administrators/executors. The probate judge included reason in her counsel fee orders, issued no written statement of reasons, or in her verbal decision placed on the record.
Appellate Courts Decision on Counsel Fees
Where an award of attorney’s fees is authorized by court rule, statute, or contract, the fee award is reviewed for abuse of discretion. Because the judge failed to identify a statute, court rule, or contract provision authorizing an award of fees, the appellate court was unable to review the fees awarded and sent the case back to the trial judge.
The court said it was unable to resolve the counsel issue on appeal without a statement of reasons in support of the awarded attorney’s fees. N.J.Ct Rule 1:7-4(a), requires that a judge shall, by an opinion or memorandum decision, either written or oral, find the facts and state [the] conclusions of law thereon the rule requires specific findings of fact and conclusions of law. The ‘[f]ailure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court.
Although Rule 4:42-9(a)(3) addresses attorney’s fees in probate actions, the Rule applies in cases where either the validity of the will or probate of the will is challenged. Here, none of parties involved in the appeal and cross-appeals challenged the validity or probate of the wills.
Where a judge provides legal authority for an award of attorney’s fees, the amount to be awarded typically “rests within the discretion of the trial judge, but the reasons for the exercising of that discretion should be clearly stated.” “[T]he judge must specifically review counsel’s affidavit of services under [Rule] 4:42-9, and make specific findings regarding the reasonableness of the legal services performed. “Without such findings it is impossible for an appellate court to perform its function of deciding whether the determination below is supported by substantial credible proof on the whole record.”
Absent a clear articulation of the statute, court rule, or contract for the award of attorney’s fees and an analysis of the reasonableness of any awarded fees based on a review of the affidavits of service filed by counsel, the appeal court was unable to perform our review function related to the awarded attorney’s fees.
Takeaway of the case
So, the outcome: the lawyers will continue to get rich while certain of the estate beneficiaries seek the mutual destruction and bankruptcy of the estate’s funds.
My takeaway is be smart when you file probate litigation.
To discuss your NJ probate litigation case, 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 Probate Litigation Attorney