Courts Must Apply Relevant Factors When Awarding Counsel Fees in Will Contests

In a recent unpublished opinion, the New Jersey Appellate Division summarized the factors a trial court must consider when awarding attorneys’ fees in Will contests.  In Matter of the Estate of Fornaro, 2019 WL 2172791, the decedent executed a Will in 2011 leaving the bulk of his estate to his son.  In an earlier 1999 Will, however, the decedent had divided his estate equally between his son and daughter.

The decedent died in 2012 and the daughter thereafter filed an action contesting the 2011 Will on the grounds of undue influence and lack of testamentary capacity. Based on the evidence, the trial court had “no difficulty concluding that [decedent] was a very strong-willed man and capable of exercising his own free will well into 2012.”  The trial court ultimately determined that the Will was not the product of undue influence and that the decedent had sufficient mental capacity to create the 2011 Will.

The trial court subsequently awarded counsel fees to both children pursuant to New Jersey Court Rule 4:42-9(a)(3), which authorizes payment from the estate of the legal fees incurred by both the winner and loser of a Will contest so long as “reasonable cause” for the challenge existed.  The Appellate Division agreed that there was reasonable cause for the challenge, but held that the trial court had not properly calculated the fee award.  It found that the trial court should have considered the factors in New Jersey Rule of Professional Conduct 1.5(a) to gauge the reasonableness of the fee awards, which include the following: 

 (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; and (8) whether the fee is fixed or contingent.

In addition, it found that the trial court should have also considered the below factors articulated in In re Bloomer’s Estate, 37 N.J. Super, 85, 94 (App. Div. 1955):

(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.

The Appellate Division noted that “[b]ecause we cannot discern from the court’s opinion whether or how it applied the subject factors, we are constrained to reverse the . . . orders, and remand the issue of counsel fees and costs for further fact finding.”

In sum, the opinion highlights that “a court must expressly state its findings of fact and conclusions of law” regarding the relevant factors when awarding attorney’s fees in probate cases.