The Award of Counsel Fees and Costs in Estate Matters Comes Before the Appellate Division for a Second Time

In re Estate of Felix Fornaro, No. A-2346-19, 2021 WL 5104820 (N.J. Super. Ct. App. Div. November 3, 2021).

This matter came to the Appellate Division a second time, following a 2019 remand to the trial court for application of the criteria relevant to an award of counsel fees.  In re Estate of Felix Fornaro, No. A-3836-15T1, 2019 WL 2172791 (N.J. Super. Ct. App. Div. May 20, 2019).

In December 2011, the decedent, Felix Fornaro, executed a will (the “December 2011 will”) which provided that his daughter, plaintiff Linda Picone, would receive 10 percent of his estate, and that his son, defendant Carmine Fornaro, would receive 80 percent.  The remaining 10 percent would be distributed among decedent’s grandchildren.  The 2011 will revoked a 1999 will, which had divided the estate equally between decedent’s two children.

Four months after the 2011 will was admitted to probate, Picone filed a complaint in the Probate Part to invalidate the will.  Picone alleged, among other things, that the decedent’s mental and physical afflictions, along with his frailty, made him vulnerable to the undue influence exerted on him by his son, Fornaro.  Picone also alleged that decedent lacked testamentary capacity at the time he executed the will.  The trial court dismissed the latter claim during trial, and dismissed the undue influence claim at the end of trial.

Before and following trial, Picone filed motions alleging there was a presumption of undue influence and that the burden of proof should be shifted to Fornaro.  The trial court denied the motion on both occasions, finding that while there were suspicious circumstances, there was no confidential relationship between the parties.  As such, the trial court held that Fornaro did not exert undue influence over his father, upheld the 2011 will, and entered a judgment in favor of the defendant.

After entry of a final judgment, both parties filed motions for counsel fees and costs.  The court entered an order to provide an allowance to Picone for her counsel fees but denied her request for costs.  The court granted Fornaro’s application for counsel fees and costs.

Picone appealed the trial court’s denial of her pretrial motion to shift the burden of proof to Fornaro.  She also appealed the denial of her costs.  Fornaro appealed the allowance of counsel fees to Picone, alleging that the trial court failed to take into consideration the requisite factors before authorizing fees and cost.

First, the Appellate Division considered whether there was a confidential relationship between decedent and Fornaro.  After examining the record, the Appellate Division affirmed the trial court’s decision that there was no confidential relationship.  The court explained that the evidence showed that the decedent was not influenced by Fornaro.  Specifically, the court pointed to the testimony of the decedent’s doctor, that the decedent was not “directable” in December 2011, and the testimony from several witnesses who testified that the decedent was defiant, strong-willed, independent, and stubborn.

The Appellate Division also held that the trial court did not err when it denied Picone’s request for costs.  The court reasoned that the court rules allow costs to be provided to a prevailing party.  Since Picone did not prevail at trial, she was not entitled to costs.

Next, the Appellate Division addressed Fornaro’s contention that Picone was not entitled to fees.  Under Rule 4:42-9(a)(3), the court may award fees if it appears that there was a reasonable cause for contesting the will, even if the party challenging the will is unsuccessful.  To satisfy the reasonable cause requirement, the petitioners must provide the court with facts that justify inquiry into the sufficiency of the will.  The trial court found that the decedent’s declining health, age, and the fact that a friend of Fornaro drafted the will, gave Picone reasonable cause to contest the 2011 will.  Even though the final analysis did not support a finding of undue influence, Picone had satisfied her burden of showing reasonable cause.

Finally, the court considered Fornaro’s contention that the court had failed to consider the factors in R.P.C. 1.5(a) and In re Bloomer’s Estate, 37 N.J. Super. 85 (App. Div. 1955) before awarding counsel fees to Picone.  Under R.P.C. 1.5(a), factors determining the reasonableness of a fee include:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent.

Id. at *19-20 (citing from R.P.C. 1.5(a)).  Additionally, in estate matters the court should also consider the Bloomer factors, namely:

(1) the amount of the estate and the amount thereof in dispute or jeopardy as to which professional services were made necessary; (2) the nature and extent of the jeopardy or risk involved or incurred; (3) the nature, extent and difficulty of the services rendered; (4) the experience and legal knowledge required, and the skill, diligence, ability and judgment shown; (5) the time necessarily spent by the attorney in the performance of his services; (6) the results obtained; (7) the benefits or advantages resulting to the estate, and their importance; (8) any special circumstances, including the standing of the attorney for integrity and skill; and (9) the overhead expense to which the attorney has been put.

Id. at *20 (citing Bloomer’s, 37 N.J. Super. at 94 (App. Div. 1955)).

After taking these factors into consideration, the court must establish the reasonable hourly rate the attorney is permitted to charge and then determine whether the hours billed are reasonable.

In the 2019 decision. the Appellate Division concluded that the trial court did not conduct the proper analysis before it awarded attorney’s fees.  The trial court should have expressly stated its findings of fact and conclusions of law, along with consideration of the factors and legal authority.  Instead, the trial court only gave a brief statement that left the Appellate Division unable to discern whether it applied the factors.  Id. at *21-22.  Thus, the Appellate Division remanded the issues of counsel fees and costs back to the trial court for further fact finding.

On remand, the trial court considered the factors set forth in R.P.C. 1.5(a) and In re Bloomer’s Estate, supra, and awarded counsel fees to both Picone and FornaroBoth parties appealed.

In the 2021 opinion, the Appellate Division explained that an allowance of counsel fees “… is a matter which rests in the sound discretion of the trial court.  [We] will not interfere unless the record discloses manifest misuse of that discretion.”  Id. at 6 (internal citations omitted).  Since the trial court had on remand considered the appropriate criteria and provided detailed findings, the Appellate Division concluded that there was no basis to find an abuse of discretion. The awards of counsel fees were affirmed.