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In re Probate of the Alleged Will of Sipko

March 8, 2010

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF GABRIELA SIPKO, DECEASED


On appeal from the Superior Court of New Jersey, Chancery Division, Civil Part, Bergen County, Docket No. P-505-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 26, 2010

Before Judges Carchman and Parrillo.

Plaintiff, the Estate of Gabriela Sipko, appeals from a final order awarding $113,358.40 in attorneys' fees and costs to defendant, Robert Sipko*fn1 , one of decedent's sons. The fees were awarded following a hearing, and Judge Koblitz determined that a codicil to decedent Gabriela Sipko's Last Will and Testament effectively disinheriting defendant, was fatally defective. On appeal plaintiffs George Sipko, Robert's father, and Rastislav Sipko, Robert's brother, assert that counsel fees were erroneously awarded, and even if properly awarded, were excessive and unreasonable. We affirm.

We briefly set forth the facts adduced at trial. On March 13, 2006, Gabriela Sipko (Gabriela or decedent) executed her Last Will and Testament in the presence of her husband, George, one of her son's, Rastislav, and a notary public, David Sikorjak. At the same time, decedent also executed the Gabriela Sipko 2005 Family Trust (the Trust), which was also notarized by Sikorjak.

Gabriela's will distributed certain personal items to specific individuals, disposing of the remainder of her tangible personal property to George. The residuary estate was left to the trustees of the Trust, Gabriela and George; and in the event both were unable to serve as trustees, Robert and Rastislav would be appointed successor co-trustees. George, Rastislav and Robert were also appointed executors of the will. Gabriela instructed that the Trust was to pay for the maintenance, health and reasonable comfort of George during his lifetime, and upon his death, the balance would be divided equally between Robert and Rastislav.

Some months later, on August 17, 2006, Gabriela executed a codicil to her will which "permanently exclude[d] . . . Robert Sipko from any and all claims to [her] estate including trust account." The codicil was witnessed by George only, and notarized by Sikorjak.

Gabriela died on March 23, 2007.

On December 24, 2007, George filed a verified complaint for the probate of a lost will as well as the codicil, in which he acknowledged that the August 17, 2006 codicil had only one witness, and thereby requested the court "to count the notary as being the second witness." Thereafter, on February 14, 2008, Robert filed an answer conceding the validity of the will but objecting to the probate of the codicil, claiming it was invalid as it did not meet statutory requirements, was barred by reason of unclean hands and was the product of undue influence.

During pretrial discovery, Sikorjak confirmed that he did not serve as a witness to the execution of the codicil. Stating that he was never asked by Gabriela to be a witness, Sikorjak declared his sole role was to notarize George and Gabriela's signatures.

On the morning of the first day of trial, defendant made a motion in limine to exclude the probate of the codicil. The trial judge, however, proceeded to trial, focusing on the validity of the codicil. After hearing the testimony of George, Rastislav and Robert regarding the probate of the codicil, the judge found that Sikorjak had acted solely in his capacity as a notary public and did not serve as a second witness to the codicil. She found that the codicil failed to comply with N.J.S.A. 3B:3-2 (requiring two witnesses to the execution of a will) and granted Robert's motion for a directed verdict.

Subsequently, Robert moved for counsel fees pursuant to Rule 4:42-9(a)(3). He sought $141,698.75 in counsel fees, submitting a detailed description of work and time dedicated to the matter, as well as attorney certifications in support of the application. The judge awarded defendant $113,358.40 in attorneys' fees and costs.

Judge Koblitz reduced the fees requested by twenty percent to reflect "the extra attorney at trial, the slippage that may have occurred from [the corporate matter*fn2 ] into [the case at hand involving the ...


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