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In the Matter of the Estate of Catherine R. Hoch


April 23, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. 09-00532.

Per curiam.


Submitted March 26, 2012

Before Judges Parrillo and Grall.

These three appeals, which have been calendared back-to-back, have been consolidated for purposes of this opinion. Appellants are Robert and Ronald Hoch, brothers of the decedent Catherine Hoch, and Robert's two children, Robert Hoch, Jr. and Leslie Cybulski. They appeal the August 31, 2010 judgment of the General Equity Part admitting decedent's April 1, 1999 Will, as altered with cross-outs and additions, into probate, and its May 6, 2011 order awarding them only partial counsel fees. For reasons that follow, we affirm.

In January 2008, decedent entered a nursing home where she resided until her death on October 15, 2008. Decedent had a Will dated April 1, 1999, in which she appointed her childhood friend, plaintiff Elizabeth Davis executrix. No one disputes that the Will was valid when executed.

In its original form, the Will included bequests to charity and named as its principal beneficiaries decedent's nephew and niece, who were not intestate heirs, her surviving brothers being her only heirs at law. Specifically, Article Fifth gave Robert Jr. a right of first refusal to purchase her home for $50,000.00, with the proceeds of the sale going into decedent's estate, and if Robert declined that opportunity, the same offer was to be extended to his sister, Leslie. The Will addressed decedent's car in the same manner. Article Sixth directed that all stocks, bonds, and other securities be sold and the proceeds divided equally between her nephew and niece. Article Seventh made specific devises of $5,000.00 each to her nephew, niece and longtime friend, Elizabeth Davis. The residuary estate in Article Eighth was devised equally to Robert, Jr. and Leslie. Finally, in Article Seventh, $10,000.00 was devised to the Hopewell Valley School District, with interest from the bequest to be used for annual student awards. In the same Article, decedent made devises of $5,000.00 each to some thirty-six named entities, all of which appear to be civic, social and/or charitable organizations.

Subsequent to the execution of the Will, although the exact timing has not been established, decedent made significant interlineations (cross-outs) and alterations in handwriting to the Will. These handwritten revisions are extensive. In part, they void the specific and residuary bequests to her nephew and niece, and add to the end of Article Twelfth:

"Robert [Jr.] and Leslie have already received millions from Herbert and the House [t]hat was [su]pposed to be mine."

In Article Seventh, twelve of the original charitable institutions are crossed out and "Howell Farm [$]10,000" is added. In Article Eighth, "Hopewell Museum" is substituted for the nephew and niece as devisee of decedent's residuary estate.

In the document's title, the words "Last Will" are crossed out and the words "Living Trust[,]" "Corrected" and "Reviewed 9/23/07" have been added, along with a signature purporting to be that of the decedent. Similarly, in the introductory paragraph, the words "Last Will and Testament" are crossed out and the words "Living Trust" are substituted in handwriting, as they are throughout the document. On the Will backer, there are the handwritten words "Void" and "Final Living Trust 4/20/2002[,]" which appear to be in the decedent's handwriting.

Davis filed a verified complaint seeking judgment admitting decedent's Will to probate and granting Letters Testamentary to her. Shortly thereafter, the court entered an order appointing Davis temporary administratrix of decedent's estate. Separate answers were filed by Robert and Ronald Hoch and a third answer was filed by the nephew and niece. The Attorney General was served with pleadings in her capacity as protector of the public's interest in estates with charitable gifts. The parties were referred to mediation, which proved unsuccessful.

A trial ensued in which Davis was the lone witness. According to Davis, in late January or February 2008, while at Care One, decedent told her that she had a Will at home, advised her where it was located, and asked her to retrieve the document and bring it to the nursing home. Davis complied within a few days of the request and when she delivered the April 1, 1999 Will, decedent identified the document as her Will. When Davis expressed concern over the handwritten cross-outs and alterations, decedent remarked that she wanted to make these changes and, in fact, intended the handwritten notations to act as revisions to her Will. She did not share Davis' concern over the effectiveness of the altered Will because she had initialed the changes.

Nevertheless, Davis suggested that it would be better if a new Will were drafted and despite decedent's belief that the altered Will remained valid, she agreed to have a new Will prepared. Davis then typed a new version of the April 1, 1999 document that incorporated all of the handwritten changes decedent had made to her Will and gave it to decedent in April 2008.*fn1 Sometime in late September or early October 2008, decedent reviewed the new draft side-by-side with the original document and was satisfied with the draft prepared by Davis, who then arranged to have a notary available for the Will's execution on October 7, 2008. That date was rescheduled for a week later, however, decedent suffered cardiac distress on October 14, 2008 and passed away the next day.

At the close of evidence, the General Equity judge found Davis' unrefuted testimony to be "credible, clear and convincing[,]" noting:

[plaintiff] will reap no personal gain if the relief she seeks is granted. Plaintiff will not be a beneficiary under the [W]ill in the form in which it is sought to be probated because a $5,000.00 bequest to her contained in the original version is crossed out and is one of the revisions that Plaintiff seeks to have approved as valid . . . [Further], Plaintiff [will] be entitled to the same commission whether or not the [W]ill is probated.

The judge admitted the April 1, 1999 Will, as altered, into probate, holding the interlineations appearing thereon to be "a revocation of only those words physically affected by them" and "the handwritten additions to the [W]ill . . . valid alterations to the [W]ill." As to the former, the judge reasoned: the pattern of the interlineations demonstrates an intent that only certain portions of the document in its original form be cancelled. . . . [C]are was taken to strike out specific portions of the [W]ill, but to leave others untouched and plainly legible. The clear impression given by the markings . . . is that decedent intended that certain portions remain effective. Also of note is the fact that none of the signatures are affected by the cross-outs.

As to the latter, finding that the original Will was never revoked as a whole, the judge concluded that decedent intended the additional handwritten language to be deemed a valid and effective alteration of the Will. Otherwise, the court reasoned, "[i]f the [d]ecedent did not want [the document] to constitute her will as altered, it would seem unlikely that she would have preserved it, rather than having disposed of it or destroyed it."

On this score, the court found that decedent's use of the term "Void" on the backer of the Will was not intended to operate as a complete revocation, but simply to convert the designation of the document from "Last Will and Testament" to "Living Trust." The document, however, remained "testamentary in nature" and [c]hanging the name of the instrument does not change its intended legal effect, which was to dispose of [d]ecedent's estate upon her death. Based upon the care exercised by the [d]ecedent in crafting the altered [document], her preservation of the document, and her explicit identification of [the document] to [p]laintiff as her valid [W]ill, the court cannot find that the [d]ecedent intended to revoke [the document] by writing the word "Void" on the backer.

In fact, the "placement of [decedent's] signature and a note to confirm her review of [the document] on September 23, 2007, constitutes evidence of the [d]ecedent's intent that [the document] remain a valid, legally effective instrument." Accordingly, the court ultimately concluded that: the evidence is clear and convincing, as required by N.J.S.A. 3B:3-3, that the [d]ecedent intended at the time of her death that [the document], as altered, constitute her last [W]ill . . . .

Subsequently, appellants each sought counsel fees and after reviewing the individual attorney certifications, the court awarded substantially reduced amounts to Ronald Hoch - $5,700.00 ($12,505.65); Robert Hoch - $5,462.13 ($15,695.13); and Robert Hoch Jr. and Leslie Cybulski -$6,750.00 ($17,476.71). The judge reasoned:

Although the court finds that there was reasonable cause to contest probate of [the Will], it does not follow that all Defendants are entitled to the full amount requested for counsel fees and costs. It is undisputed that Defendants Ronald Hoch and Robert Hoch stood in identical positions relative to the estate. As Decedent's sole heirs-at law, each of these Defendants stood to receive 50% of the estate under intestate succession. The only explanation offered for the brothers engaging separate attorneys is that Ronald Hoch and Robert Hoch are estranged and do not communicate with each other. The court rejects the argument that fraternal discord justifies duplication of attorney services. Therefore, the court will adjust the fees . . . by establishing the amount of a reasonable fee from the inception of this matter through mediation, and splitting that fee between the two attorneys.

Until the time of mediation, Defendants Robert Hoch, Jr., and Leslie Cybulski advanced a position different from that espoused by their father and uncle. Having concluded that their initial position was reasonable, the court will award reasonable fees and costs . . . through the date of mediation.

It is undisputed that after mediation, all Defendants adopted the same position and argued for rejection of [the Will]. . . .

[I]t was duplicative for [three attorneys] [to] argu[e] for the same outcome.

Therefore, the court will establish a reasonable amount for post-mediation fees and costs and will divide that amount three ways between the aforementioned attorneys.

Although variously phrased, appellants' essential contentions are that plaintiff failed to prove by clear and convincing evidence that the April 1, 1999 document as altered constituted decedent's last Will and that the court abused its discretion in awarding less than the requested amount of counsel fees. We disagree and affirm substantially for the reasons stated by Judge Jacobson in her comprehensive written opinions of August 31, 2010 and May 6, 2011. We add only the following comments.

"Findings by a trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We also defer to the trial court's credibility determinations. In re Taylor, 158 N.J. 644, 659 (1999).

Governed by this standard, we find the trial judge's findings as to decedent's intent amply supported by credible proof.

After all, "a court's duty in probate matters is 'to ascertain and give effect to the probable intention of the testator.'" In re Probate of Will & Codicil of Macool, 416 N.J. Super. 298, 303 (App. Div. 2010) (quoting Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564 (1962)). "In attempting to determine the probable intent of the testator, . . . courts must consider the entirety of the [W]ill in light of the circumstances surrounding the execution of the [W]ill." In re Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005). Courts must put themselves in the testator's position and attempt to do what the testator "'would have done had he envisioned the present inquiry.'"

Ibid. (quoting Fidelity Union Trust Co., supra, 36 N.J. at 565-66) (internal quotations omitted). In this regard, extrinsic evidence may be used when looking at probable intent. Gabrellian, supra, 372 N.J. Super. at 441.

Here, Davis' testimony is clear and unequivocal that decedent intended the April 1, 1999 document, with its alterations and cross-outs, to be her last Will. Her testimony is not only unrefuted, but corroborated by the fact that decedent preserved the document rather than having destroyed or otherwise disposed of it.

Nevertheless, appellants argue that, as a matter of law, the extensive interlineations and alterations by decedent operate to revoke the April 1, 1999 document in its entirety. Of course, we owe no special deference to the trial court's conclusions of law. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Here, however, we find no erroneous application of the governing legal principles.

The fact that the handwritten additions and excisions were not executed in compliance with N.J.S.A. 3B:3-2 is not fatal to admitting the document into probate if it otherwise complies with N.J.S.A. 3B:3-3, that is: if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's [W]ill; (2) a partial or complete revocation of the [W]ill; (3) an addition to or an alteration of the [W]ill; or (4) a partial or complete revival of his formerly revoked [W]ill or of a formerly revoked portion of the [W]ill.

Here, as already noted, the trial judge found by "clear and convincing" evidence, namely, evidence "'so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the precise facts in issue[,]'" In re Perskie, 207 N.J. 275, 290 (2011) (quoting In re Seaman, 133 N.J. 67, 74 (1993)), that decedent intended the specific cross-outs to "revoke" only those portions of the Will affected by them and the additional handwritten language to be deemed an effective alteration of the document. Such a finding, as a matter of law, dispenses with the technical formalities contained in N.J.S.A. 3B:3-2, and otherwise establishes the Will's validity and effectiveness. N.J.S.A. 3B:3-3.

Equally clear is that cross-outs and excisions may operate to revoke only a part of a Will and not necessarily the whole document. N.J.S.A. 3B:3-13. In other words, cancellation of a part of a Will with the intention to revoke operates to revoke only the part cancelled. The rest of the Will remains operative. Ziegler v. Sutphin, 1 N.J. Super. 147, 150 (App. Div. 1948). Here, again, the proof was compelling, and undisputed, that the interlineations by decedent were intended to revoke only those portions so physically excised with the remainder to have continuing force and effect. Accordingly, we conclude the admission of the challenged document into probate was well founded in both fact and law.

We also find no abuse of discretion in the award of partial attorneys' fees.

Rule 4:42-9(a)(3) provides:

[i]n a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the [W]ill or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate.

"Except in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a [W]ill dispute." In re Reisdorf, 80 N.J. 319, 326 (1979). In order to award attorney's fees "against the estate there must . . . be a showing that the validity of the [W]ill was not only questionable but there was reasonable cause for actually contesting it, related to the practical effect of a successful contest, the size of the estate and the probable expenses of litigation, and the reasonably anticipated result." In re Will of Caruso, 18 N.J. 26, 33 (1955) (internal quotations omitted). In awarding attorneys fees in probate the trial judge must "exercise . . . sound discretion to prevent misuse of the judicial process and the mulcting of the estate." Id. at 36.

In order to determine the reasonableness of the requested attorney's fees, a court must look at:

(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 service 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. In any case, the counsel fee allowed should never exceed reasonable compensation for the service rendered the estate. [In re Bloomer, 37 N.J. Super. 85, 94 (App. Div. 1955).]

Further RPC 1.5(a) provides:

A lawyer's fees shall be reasonable. The factors to be considered in determining the reasonableness of a fee 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 property;

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.

"'[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

Measured by these principles, the court's partial attorney fee awards did not constitute an abuse of discretion. The judge identified a commonality of interest, mutuality of purpose, identity of position and, therefore, considerable overlap in the triple professional services rendered to appellants.*fn2 We perceive no error in taking this factor into account or the methodology employed in arriving at a reasonable attorney fee award for each appellant.


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