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In the Matter of the Estate of Halina Krzeminski

December 19, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. 178931.

Per curiam.


Submitted May 7, 2012 -

Before Judges A. A. Rodriguez and Ashrafi.

Attorney Joel A. Davies appeals from an order denying his motion for reconsideration of the amount of attorney's fees the Probate Part awarded to him following litigation of a contested will. Davies contends that the court reduced his requested fee based on an improper policy of capping the hourly rate where the attorney's fees are to be paid out of the estate. Although we agree with Davies that a judge's personal policy or a local court policy should not be the basis for determining reasonable attorney's fees pursuant to Rule 4:42-9, the judge in this case did not abuse his discretion in reducing the hourly rate requested by Davies. Therefore, we affirm the judge's order.

To evaluate Davies's claim for higher fees, we review the factual record and procedural history of the probate case. The decedent, Halina Zdonkiewicz Krzeminski, and her husband, Stefan Krzeminski, were citizens of Poland before World War II. She was an architect and he a planning engineer. After the war, they left Poland and lived in Asia and Australia before immigrating to the United States. They worked on a number of civic and private projects, including Halina's final position as a design architect for the Port Authority of New York and New Jersey. The professional endeavors of Halina and Stefan resulted in substantial personal assets at the time of their deaths. They had no children.

After Stefan died, Halina discussed the preparation of a will with Caesar Gaza, a long-time family friend who spoke Polish. Gaza drafted a will in English that he reviewed with Halina on several occasions. In August 2008, Gaza delivered the draft will for final preparation to the law firm at which attorney Jeffrey McWeeney worked. Before the will could be prepared and executed, however, Halina died on September 5, 2008. Initially, no family member or other person was available to claim Halina's body and to arrange for a funeral.

Thomas Ruddy was Halina and Stefan's accountant and had a durable power of attorney executed by Halina. About four weeks after her death, Ruddy sought authorization to arrange for her funeral. Representing Ruddy and Gaza, attorney McWeeney filed a complaint in the Probate Part, Ocean County, for Ruddy's appointment as temporary administrator pursuant to N.J.S.A. 3B:10-12. The complaint also sought to probate the unsigned draft will prepared by Gaza pursuant to N.J.S.A. 3B:3-3. Ruddy was named in the draft will as executor of the estate, and Gaza was named as alternate executor and also as a co-executor for the purpose of making distributions to Polish beneficiaries. Gaza had contacted Halina's relatives in Poland.

Halina's estate was valued at more than $3,200,000. The unexecuted will offered for probate contained a number of bequests, including specific bequests to three relatives in Poland totaling $60,000; a bequest of $1,000 to Eve Morawski, a friend of Halina, and of $25,000 to another named friend in Poland; bequests to named American and Polish charities totaling $1,070,000; a contingent bequest "if possible" to Ruddy of "not less than $220,000 but not to exceed the sum total of $250,000 derived from the combined corpus commissions as executor of the estate and the estate itself"; and an unspecified bequest to Gaza, the amount left blank in the draft will with the notation "to be indicated directly to attorney at the request of [Gaza]."

In October 2008, the judge of the Probate Part authorized Ruddy to make funeral arrangements, and he scheduled a hearing on an order to show cause why the unexecuted will should not be admitted to probate under N.J.S.A. 3B:3-3. An attorney filed an answer and counterclaim on behalf of Eve Morawski, contending that some of the charitable bequests were not in accord with Halina's wishes. Also, attorney Christopher Olszak filed an answer and counterclaim on behalf of four members of the Zdonkiewicz family in Poland, Halina's nieces and nephews. The Zdonkiewicz parties contested probate of the unexecuted will and sought intestate distribution of the estate pursuant to N.J.S.A. 3B:5-4. A number of the charities named in the will also filed pleadings, and the Attorney General of New Jersey joined the action in his parens patriae role on behalf of other charities that were beneficiaries under the will.

Because attorney McWeeney had a conflict of interest as a witness in the litigation, he withdrew from the case, and attorney Davies undertook representation of Ruddy and Gaza beginning in February 2009. After discovery was conducted, Davies prevailed in opposing a motion for summary judgment brought by attorney Olszak on behalf of the Zdonkiewicz parties. We subsequently denied Olszak's motion for leave to file an interlocutory appeal.

Following further discovery, the attorneys participated in settlement discussions before the judge of the Probate Part. In the course of those discussions, which were conducted off the record, the attorneys provided estimates of the fees they were likely to request from the estate in accordance with Rule 4:42-9(a)(3). The judge indicated that it was the practice and policy of the surrogate's office in Ocean County to pay appointed attorneys at the rate of $200 per hour and that such a rate was sometimes considered a cap on the award of fees out of an estate to retained attorneys. Nothing in our record suggests that any of the attorneys objected to a $200 hourly rate at that point. The two attorneys who had accumulated the most hours in the litigation, Davies and Olszak, estimated that the fees they would request would be in the neighborhood of $50,000, those amounts calculated based on the $200 rate.

According to the judge, Deputy Attorney General Marc Krefetz, who was appearing on behalf of otherwise unrepresented charities, was instrumental in analyzing the applicable law and in leading the parties to the settlement they eventually reached. On June 28, 2010, the court entered a consent judgment to document the settlement.

The consent judgment admitted the will to probate with agreed modifications. The charities and other named beneficiaries received forty percent of the estate after payment of expenses and taxes; the next of kin seeking intestate distribution received sixty percent. Ruddy waived a claim for commissions as executor, but he received the designated $220,000 minimum bequest provided to ...

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