Michels, Morgan and Milmed. The opinion of the Court was delivered by Milmed, J.A.D. Morgan, J.A.D. (dissenting).
This is a will contest. The decedent, Jenny Olga Lehner, died on April 20, 1972. She was in her 80's. An instrument purporting to be her last will, dated November 18, 1969, was admitted to probate in common form by the Surrogate of Bergen County on May 4, 1972 on the complaint of William P. Sheridan, the sole beneficiary and executor named therein. Sheridan, an attorney with an office in Hackensack, is referred to in the will as decedent's "friend and attorney."*fn1 At the time of her death decedent was a widow, her husband having died in 1964. She had no children. She was survived by three sisters and one brother. The three sisters are Mildred Berndt, Minnie Berghaus and Wally Lehner, residents of New Jersey. Her brother was Alfred Jahn, a resident of the State of Washington. He died three weeks after decedent. His widow, Wally Jahn, is the executrix of his last will and testament.
By order to show cause under R. 4:80-7(a), dated October 3, 1972, decedent's three sisters and sister-in-law (Wally Jahn) instituted this contest seeking to set aside the judgment of the surrogate admitting the will to probate. The charge is that the will was the product of undue influence exerted by Sheridan upon testatrix. Following a de novo hearing in the County Court, the trial judge found that no undue influence had been exercised by Sheridan upon decedent and that the contestants "have not been aggrieved and therefore have no standing to maintain this action." He ordered the entry of judgment dismissing the proceeding and affirming the action of the Surrogate of Bergen County in admitting the will to probate, and awarded a counsel fee to the attorney for the contestants in the amount of $1,500.
The contestants appeal. Respondent, the proponent William P. Sheridan, cross-appeals from the award of the counsel fee.
The essential facts may be summarized as follows: The decedent was a very heavy woman, lame from birth and of failing memory. She sold her home in Hackensack in May 1969, placed her furniture in storage and went to Arizona. She returned shortly thereafter and purchased a house in River Edge. There are numerous references in the record to her inability to manage her own finances. William P. Sheridan was admitted to the Bar of this State in 1949. Prior to that time he was a vice-president and trust officer of Peoples Trust Company in Bergen County. He was not related to decedent. He first met her in November 1966 when he drew a will for her. In that will decedent made a specific bequest of $4,000 each to her friends, Ilse Hirschle and Peter Hirschle, of West Germany,*fn2 and left her residuary estate to the New Jersey Association for Retarded Children, Bergen-Passaic Unit, Inc., located in Hackensack. The executor named in that will was Peoples Trust Company of Bergen County. Sheridan, who drew the will, was one of the witnesses to its execution. No mention is made in that will of decedent's sisters and brother. At the time, decedent told Sheridan that she owned the home in which she lived "and she had some savings bonds and some savings accounts. A total value roughly of $100,000." In January 1967 she wanted to change her will. Sheridan drew a new will in which she named as her sole beneficiary the New Jersey Association for Retarded Children, Bergen-Passaic Unit, Inc., and again named Peoples Trust Company of Bergen County as executor. Sheridan was also one of the witnesses to the execution of this will. No mention [142 NJSuper Page 60] of her sisters and brother is made in this will. In April 1967 another will of the decedent was drawn by Sheridan. In that will she named Sheridan as executor (and trustee of the trusts created thereunder) and directed him, after payment of taxes, funeral and administration expenses, to liquidate the remainder of her estate, the proceeds thereof to be paid in three equal parts: one part to a "friend" in Phoenix, Arizona;*fn3 a second part to two "friends" in West Germany, in equal shares;*fn4 and the third part to her "friends", Ilse Hirschle and Peter Hirschle, of West Germany, in equal shares.*fn5 Sheridan was also one of the witnesses to the execution of that will. No mention of decedent's sisters and brother is made in this will. In addition to drafting these three wills Sheridan performed other legal services for decedent, i.e. , he represented her on the sale of her house in Hackensack, in concluding the administration of her husband's estate, and in filing her claim for a senior citizen's exemption in regard to her home in River Edge. He also assisted her with "her tax problems and problems involving her checking account." In regard to the latter he wrote checks for her. On October 15, 1971 decedent gave him for safekeeping her bank checkbooks and passbooks and also "a blank signed withdrawal on one of the passbooks." Sheridan testified that "She didn't want to have possession of these assets any longer for fear that others would take advantage of her." She indicated to Sheridan that she had "reluctantly and unwillingly" signed two checks for a couple who had been performing services for her around the house. Sheridan also testified that he visited decedent socially "only once," which "was just before Christmas of 1971, where I gave her for Christmas
either a fruit basket or a box of candy. I don't remember that."
In the latter part of 1969 decedent told Sheridan that she wanted to have a new will drawn including him as a beneficiary. He told her, "I wouldn't draw such a will and couldn't draw such a will and didn't want her to name me as a beneficiary." He said that she told him that she "wanted to name" him in her will; that she "understood why" he "would not draw such a will" and that he "was not the only attorney she knew; she named three other attorneys * * * Mr. Butler, and Clinton and Bentley who were partners." We note at this point that John F. Butler, the attorney who ultimately drew the will which is in contest, testified that he did not know decedent prior to the Fall of 1969 when she asked him to draw her will. Butler, an attorney with an office in Hackensack, testified concerning an incident that occurred in September or October 1969 while he was having lunch in Phiefers Restaurant in Hackensack "at the table where many of the attorneys gather about." He said that
Mr. Sheridan had lunch there quite frequently and this one particular lunchtime he said to me; he said, "Now, a woman by the name of Jenny Lehner may possibly get in touch with you to draw her will. He said [ sic ] she wants to remember me in her will and I have told her that under these circumstances I can't draw the will and she has the name of two or three attorneys including yourself, and she may conceivably call you."
Butler also stated that Sheridan indicated to him that the decedent "probably would want to leave everything to him." About ten days or two weeks later Butler received a call from a woman identifying herself as Jenny Lehner; she told Butler that she wanted him to draw her will, and he told her that he could stop at her house some afternoon on his way home from the office and go over the matter with her. In early November he stopped off at her house. She told him that she wanted him to draw her will and "to set it
up in such a fashion that everything would go to her friend Mr. Sheridan." He inquired about her relatives and she told him of her brother and sisters, saying, in effect, "I'm not close to them. They are not close to me and we don't bother with each other at all * * * I have no feeling for them." On this first occasion Butler was in decedent's home for about three-quarters of an hour because decedent "insisted" on showing him through the house. He did not discuss with her the extent of her estate. In this regard he testified that "She said she owned the house, she owned the house, but I did not inquire as to her assets and she didn't volunteer as to exactly what she had." While he made notes of his conversation with decedent, the notes contained no reference to who the beneficiary was to be. He testified that there was no particular reason for this since "there was no question in his mind that he [Sheridan] was to be the sole beneficiary." Thereafter Butler drew the will, and he and his secretary then went to the decedent's home to have the will executed. Butler stated that he "went over the will with her carefully" and that she stated to him that "this is exactly what she wanted to do." He stated that decedent had read the will before signing it; that he and his secretary witnessed its execution; that the decedent "took the will" and that he gave her his "bill." He stated that sometime thereafter he was having lunch in Phiefers and "I don't know whether Mr. Sheridan brought it up and asked me if Mrs. Lehner had had ...