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In the Matter of the Alleged Will of

August 7, 2012

IN THE MATTER OF THE ALLEGED WILL OF ALLAN C. SCHENECKER, DECEASED.


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-67-09/S#219523.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 18, 2012 -

Before Judges Waugh and St. John.

Joan Bennett-Schenecker,*fn1 widow of Allan C. Schenecker, appeals from the May 26, 2011 order of the Probate Part denying her application for counsel fees pursuant to Rule 4:42-9(a)(3). Following our review of the arguments on appeal, in light of the record and applicable law, we affirm.

I.

Bennett was married to Schenecker in August 2008. Approximately five months later, Schenecker died. He had executed a will on November 29, 2006, but the original could not be located. Schenecker's daughter, Stephanie Godfrey, filed a complaint seeking to admit a photocopy of Schenecker's will to probate. Bennett opposed the application, alleging that Schenecker had destroyed the will before his death.

On December 22, 2009, after a two-day trial, the trial judge found by clear and convincing evidence*fn2 that Schenecker did not destroy or revoke his 2006 will. Underpinning the basis of her holding, the judge did not find credible Bennett's testimony that Schenecker had destroyed the will. The judge found, however, that Schenecker's testamentary intent, as evinced by the proffered photocopied will and the testimony at trial, was to bequeath Bennett the Tinton Falls marital residence and for Godfrey to receive the remainder of the estate. The photocopy of the 2006 will was subsequently admitted to probate. Following the trial, Bennett's application for counsel fees in the amount of $67,020.61 was denied.

Bennett appealed, arguing the trial judge erred in denying her counsel fees, and finding that the 2006 will had not been destroyed. We affirmed the order admitting the will to probate but remanded for further consideration on the issue of counsel fees and estate administration costs. In re Estate of Schenecker, No. A-4161-09 (App. Div. March 10, 2011) (slip op. at 23), certif. denied, 207 N.J. 189 (2011).

Following her appeal, Bennett filed another motion seeking $29,593.17 in additional counsel fees pursuant to Rule 4:42-9(a)(3) and Rule 2:11-4(a). On remand, in a May 23, 2011 oral opinion, and memorialized in a May 25, 2011 order, the judge denied Bennett's request for trial and appellate counsel fees and costs. The judge also denied Bennett's application for fees related to her service as temporary administratrix.

In support of her decision to deny counsel fees to Bennett, the trial judge reiterated her previous finding that Schenecker did not destroy the will because neither the testimony of Bennett nor that of her witnesses was credible to suggest otherwise. She elaborated, "I did not find [Bennett] to be credible for a number of reasons, one of which was that she called [Schenecker's attorney] right after [] Schenecker died and wanted to know where the will was, so she assumed there was a will." The judge also noted that Bennett's witnesses provided either inadmissible hearsay testimony or testimony that lacked probative value. Additionally, she found "that [Bennett] . . . did have a weak case, [and] she should have known that . . . I will deny the application for counsel fees on that ground."

II.

On appeal, Bennett argues the court abused its discretion in denying her application for counsel fees to be paid from the estate because she had a reasonable basis to contest the ...


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