On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Essex County, Docket No. CP-0212-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 25, 2012
Before Judges Cuff, Lihotz and St. John.
Willie Booker died intestate. His sole heir was an adult son. Decedent's mother, Margaret Bryant, filed a verified complaint seeking her appointment as administrator of the estate, creation of a statutory special needs trust, and appointment of a trustee for her grandson. Bryant filed another verified complaint seeking a medical and psychiatric evaluation of her grandson, a declaration of incapacity, and her appointment as guardian of her grandson's property and person.
Approximately six months after filing the complaints, Bryant discharged her attorney and proceeded pro se. Approximately six weeks later, Bryant withdrew the guardianship action and the court entered the dismissal. Bryant's attorney appeals from the August 9, 2011 order denying his application for fees. We affirm.
Judge Koprowski held there was "no legal basis to award counsel fees from the Estate" to Bryant's attorney. He noted that the guardianship complaint had been withdrawn, it was "severely deficient on its face," the subject of the guardianship was a resident and domiciliary of Pennsylvania and a guardianship action had not been filed there, and Bryant had not demonstrated how any of her actions aided in preservation or protection of the corpus of the estate. The judge stated:
In this case, the guardianship action was withdrawn, and appeared to be severely deficient on its face - for example, there were no affidavits from medical doctors as required under R. 4:86 appended to the complaint. As [the Administrator] argues, [the son] is now and has been for several years at least, a resident and domiciliary of Pennsylvania, although [Bryant] was laboring under some confusion on that issue. Therefore, any guardianship action should have been brought in that state, rather than New Jersey. Mr. Pritchard concedes Ms. Bryant "had standing [in the probate action] by way of the guardianship." . . . This court will not allow a guardianship action brought in the wrong state to "bootstrap" a probate case into court in Essex County, and then further diminish the Estate by allowing [Bryant] in the guardianship and companion estate case to be awarded counsel fees. More fundamentally, Ms. Bryant has not demonstrated how her actions have "aided directly in preserving or protecting the fund in court." Willie Booker died intestate, and his sole heir is [his son and Bryant's grandson]. Concerns about [his son]'s alleged alcohol and substance [abuse] serve as the underpinning for the guardianship action, but Ms. Bryant did not offer any expert testimony in support of this claim. It is not appropriate to file a guardianship action, later withdrawn, for the apparent purpose of gaining standing to have oneself appointed Administrator of an estate in lieu of the one intestate heir of the Estate. The concerns are amplified by the allegations of possible misappropriation of Estate assets for personal use by Ms. Bryant, which [the son] has elected not to pursue, and the filing of this guardianship claim in New Jersey.
Having reviewed the record in its entirety, we affirm substantially for the reasons expressed by Judge Koprowski in his August 9, 2011 written opinion.
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