On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Essex County, Docket No. CP-333-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
In this probate matter, the issue before us concerns attorneys' fees awarded to the persons who unsuccessfully sought to admit to probate a purported codicil to a will and the failure to award fees in favor of the estate pursuant to Rule 1:4-8. We affirm the denial of Rule 1:4-8 fees but remand for entry of detailed findings of fact to support the fees awarded to the unsuccessful litigants.
Richard Riley died on April 9, 2006, following a massive cerebral hemorrhage and stroke. He died testate. Under the terms of his will, his entire estate passed to his wife, Frances, and his daughter, Patricia. Decedent's daughter was named executrix of the estate. On October 11, 2006, Betty Hummel, Joseph Lang, and William Riley filed a verified complaint against the executrix in which they sought to admit to probate, as a codicil to decedent's will, a one page handwritten statement authored by the decedent. On the return date of the order to show cause, the probate judge conducted an evidentiary hearing after which she found that the statement should be considered contemplated instructions to decedent's attorney that were never incorporated in his will. Therefore, the judge denied admission of the statement to probate.
Contestants Hummel, Lang and Riley, and the executrix submitted certifications in support of their applications for legal fees and expenses. The executrix opposed any award of fees to contestants. She argued that the claim was neither meritorious nor successful. The executrix also contended that she was entitled to fees from the contestants in accordance with Rule 1:4-8 because contestants' claim had no basis in fact or law.
Referring to Rule 4:42-9(a)(3), the probate judge rejected the estate's position that contestants had to succeed on their claim in order to receive an award of fees from the estate. She also declined to award frivolous litigation fees pursuant to Rule 1:4-8 because the contestants' claim was not without any merit. She then proceeded to award $15,000 in attorneys' fees to contestants and $20,000 to the estate. Both awards are to be paid by the estate.
Contestants filed an appeal, which they later dismissed, from the order denying admission to probate of the purported codicil. The estate filed a cross-appeal from the order awarding fees to contestants payable from the estate and denying its application for fees pursuant to Rule 1:4-8. The fee award has been stayed pending appeal. The appeal proceeds, therefore, solely on the issues of the fee award to contestants and the denial of frivolous litigation fees to the estate.
The judge conducted oral argument concerning the fee applications on December 7, 2006. She recounted that she found contestants did not bear their burden of proof to allow her to find that the handwritten statement should be admitted as a codicil to decedent's will. She noted, however, that the claim was not entirely without merit. Our review of the evidence produced at the November 28, 2006 evidentiary hearing supports these findings. Therefore, we do not disturb the denial of fees for frivolous litigation pursuant to Rule 1:4-8. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
We are also satisfied that the probate judge correctly interpreted and applied Rule 4:42-9(a)(3). The rule specifically allows a judge to award fees payable from the estate even if probate is refused.
We recognize that appellate review of a trial court fee determination is deferential. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); Rendine v. Pantzer, 141 N.J. 292, 317 (1995). We cannot defer, however, when the quantum of the fee award is not accompanied by any findings of fact as to the reasonableness of and necessity for the work performed, the reasonableness of the hourly rate, and the reasonableness of the time expended on the litigation.
Rule 1:7-4 requires a trial judge to accompany a decision with findings of fact and conclusions of law. When the trial judge provides the requisite findings of fact and those findings are supported by substantial evidence in the record, we will defer to the judgment and discretion of the trial judge. Rendine, supra, 141 N.J. at 317. Without those findings, we must remand for review of the record submitted in support of and in opposition to the fee applications and entry of the requisite findings of fact.
In summary, we affirm the order awarding fees to contestants payable from the estate and denying the Rule 1:4-8 fee application filed by the estate. We remand for findings of fact regarding the ...