In the Matter of the Estate of Edward Wlodarczyk, No. A-0258-16T4, 2018 WL 3431779 (N.J. Super. Ct. App. Div. July 17, 2018)

In the Matter of the Estate of Edward Wlodarczyk, No. A-0258-16T4, 2018 WL 3431779 (N.J. Super. Ct. App. Div. July 17, 2018).

Plaintiff Anna Wlodarczyk (“Anna”) appealed from an order granting a motion by Trinity Evangelical Lutheran Church (“Trinity Church”) for involuntary dismissal at the close of Anna’s case. The Attorney General of New Jersey, in its parens patriae capacity, joined in the motion.  Anna also appealed from an order granting her counsel fees, arguing the amount awarded was less than the amount sought.

Plaintiff’s son was the testator, Edward Wlodarczyk. He executed a pour-over will and revocable living trust.  He was unmarried and childless when he executed the will and trust.  Anna was his mother and sole heir. Id. at *2.  Pursuant to the terms of the will, the testator divided his $2.1 million estate between Anna and Trinity Church in equal shares. Id. As a pour-over will, the testator devised his entire estate to the trust. Id. According to the trust agreement, he designated himself as the sole trustee until his death, and then the trust income and principal would be divided equally between his mother and Trinity Church. Id. at *3.

Edward died on November 21, 2012, and his will was admitted to probate. Anna filed a verified complaint challenging the validity of the will and trust.  She alleged the will and trust were the product of a consumer fraud scheme and did not evince her son’s intent to provide for her. Id. at *5-6.  An attorney had prepared the will and trust pursuant to a referral from an estate planning coordinator.  The coordinator met with the testator and relayed information to the attorney.  The attorney spoke with the testator on the telephone, prepared the documents and forwarded them to the coordinator for delivery to the testator. Id. at *3-4.

The trial court found that the attorney’s use of a template to prepare the documents was not fatal, reasoning that “[l]awyers do it all the time, and they trade documents and update them [.]” Id. at *7.  Nor did the trial court find any issue with the amount of time the attorney spent with the testator during telephone conference. Id. The court found no indication the coordinator did anything wrong by performing the intake and referral. Id. at *8.  Additionally, the trial court recognized that undue influence was not an issue because the contact between the coordinator and testator was so limited. Id. at *9.  Ultimately, the trial court found the process of executing the testamentary documents was streamlined and not characterized by a typical in-person meeting at a lawyer’s office; nevertheless there was no evidence to invalidate the will or trust.   Id. The trial court granted the motion for involuntary dismissal at the close of Anna’s case, but  also granted Anna’s motion for counsel fees, finding she had reasonable cause to challenge the will. Id.

The Appellate Division affirmed. Its independent review of the record led to the same conclusion as the trial judge:  there was no evidence of fraudulent conduct in the procuring of the testator’s will and trust. Id. at *13.  Rather, the testator’s intention was clearly expressed in the testamentary documents and there was no showing that the attorney or coordinator were affiliated with Trinity Church, which could implicate a conflict of interest. Id.

The Appellate Division parted with the trial court’s award of counsel fees. Pursuant to R. 4:42-9(a)(3), a trial court may grant attorney’s fees in probate actions. Id. at *15.  Initially, although Anna did not succeed in challenging the will and trust, the court properly found she was entitled to a fee award.  Anna had reasonable cause for contesting the validity of the will, pursuant to R. 4:42-9(a)(3), because she claimed the testator was the victim of a scam or fraud. Id. at *16.  However, the trial court did not conduct the proper analysis; the trial court should have considered the “prevailing market rate in the community and ensured the rate is ‘fair, realistic, and accurate, or should make appropriate adjustments’.” Id. at *16 (quoting Rendine v. Pantzer, 141 N.J. 292, 337 (1995)).

The trial court awarded a blanket fee of $10,000, but did not determine the lodestar rate nor the reasonable amount of hours spent under the circumstances. Id. at *17.  Thus, the appeals court noted the lower court only considered two of the eight factors under Rules of Professional Conduct 1.5(a)(1) and (4). Id. at *18.  Accordingly, the Appellate Division vacated the order awarding counsel fees and remanded the issue to the trial court.