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In re Estate of Herrsche

Superior Court of New Jersey, Appellate Division

November 25, 2013

JENNIE MATHESIUS, Defendant-Appellant JACYLN GREGORY, Plaintiff-Respondent,


Argued September 10, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. P-2022-2011.

Allen Hantman argued the cause for appellant (Morris & Hantman, attorneys; Mr. Hantman, on the brief).

Alice Beirne argued the cause for respondent.

Before Judges Messano and Hayden.


Jennie Mathesius, widow of John Herrsche, appeals from the August 15, 2012 order of the Probate Part granting counsel fees pursuant to Rule 4:42-9(a)(3) to Jaclyn Gregory, Herrsche's daughter, who challenged the admission of Herrsche's holographic will into probate. Mathesius argues that Gregory was not entitled to counsel fees from the estate because she did not have reasonable grounds for challenging the will. We have reviewed the arguments in light of the record and applicable law, and affirm for the reasons contained herein.

We discern the following facts from the record. Herrsche died on September 1, 2011, after a brief illness. He was survived by his adult daughter, Gregory, his granddaughter, Kayla (Gregory's daughter), and his wife, Mathesius.

Gregory was born in 1981. Herrsche and Gregory's mother never married and their relationship ended in 1987. Thereafter, Herrsche continued to support Gregory through her emancipation. Father and daughter saw each other regularly and enjoyed a cordial relationship.

From 1998 through 2001, Herrsche and Mathesius were married, but never lived together. In 2008, Herrsche and Mathesius came back into contact because Mathesius was caring for Herrsche's ailing mother. In 2009, Mathesius moved into Herrsche's house. Mathesius reported that she and Herrsche lived together as a couple, but Herrsche told others that Mathesius was living in his basement apartment because he felt bad for her. Herrsche did not speak about Mathesius to Gregory or to most of his friends and denied being in a romantic relationship with her. Gregory only recalled seeing Mathesius once, at her grandmother's funeral.

On July 5, 2011, Gregory spent the night at Herrsche's house and Herrsche told her he had a potentially contagious lung infection. Thereafter, Gregory attempted numerous times in July 2011, to speak with her father regarding his health condition. Despite several messages left on Herrsche's cell and home phones, as well as with Herrsche's secretary, Gregory was unable to contact her father.

Meanwhile, on July 6, 2011, Herrsche and Mathesius took Herrsche's handwritten will to Heritage Community Bank, where Herrsche requested that the document be notarized. The will left $10, 000 to Herrsche's brother, Ronald;[1] $30, 000 to Gregory;[2]Herrsche's house and its contents, and his retirement account to Mathesius; and two properties in Dover to his childhood friend, Guy Carrubba. The will had no residuary clause or provision regarding the dispensation of Herrsche's chiropractic practice. The execution of the will at the bank was not properly witnessed.

Gregory next saw her father later in July 2011, when she went to his chiropractic office. Gregory noted that Herrsche looked unhealthy, told her that he was still not feeling well, and had a covering chiropractor adjust her.

Gregory made numerous subsequent unsuccessful attempts to contact her father by telephone and by going to his house. She even called around to local hospitals to ensure that Herrsche was not hospitalized. At one point, when Gregory was calling her father, Mathesius answered his phone. Mathesius purportedly told Gregory, "Jaclyn, your dad is trying to get better. Stop calling here. . . . Stop calling here all together."

In August 2011, Herrsche was hospitalized overnight. When discharged on August 12, 2011, Herrsche married Mathesius in a municipal ceremony witnessed by his friend Carrubba and Carrubba's father. No one else was present for the ceremony during which Herrsche was on oxygen and physically supported by Carrubba. Gregory and most of Herrsche's friends did not learn of her father's remarriage to Mathesius until after his death.

Also on August 12, 2011, Ronald came from Virginia to visit Herrsche. During the visit no one told Ronald about the recent marriage. Ronald had also been unable to reach Herrsche via telephone in July 2011. When Ronald finally spoke with his brother in August 2011, Herrsche revealed his life-threatening illness, but instructed Ronald not to tell anyone.

Herrsche was hospitalized on August 25, 2011, and began receiving hospice care on August 31, 2011. Herrsche died on September 1, 2011, and was cremated shortly thereafter. Mathesius did not inform Gregory about her father's death, but relied on Ronald to notify Gregory.

Mathesius arranged a private memorial service on September 3, 2011, which Gregory was permitted to attend. Gregory's mother and other family members were not allowed to attend. At some point, Mathesius purportedly told Gregory, "I'm his legal wife. You don't have a leg to stand on."

On September 6, 2011, Gregory filed a caveat to any potential will of Herrsche. Mathesius tried to probate the July 6, 2011 will on September 12, 2011. The Surrogate denied probate due to the existence of Gregory's caveat.

Gregory filed a verified complaint and order to show cause on September 20, 2011, seeking, among other things, to administer her father's estate and nullify the holographic July 6, 2011 will, claiming conversion of estate property, lack of testamentary capacity, undue influence, and malicious interference with the right to inherit. Mathesius filed an action on September 26, 2011, to dismiss the caveat and probate the holographic will.

Both complaints were given the same docket number and discovery ensued. During discovery, it became evident that Herrsche had purposely kept the gravity of his illness from his friends and family, allowing only Mathesius, Carrubba, and eventually his brother to know of his condition.

After three days of trial before Judge Thomas L. Weisenbeck, Gregory completed presenting her case. Mathesius moved to dismiss Gregory's case, which the judge orally granted. On August 15, 2012, Judge Weisenbeck issued an order dismissing Gregory's complaint with prejudice; admitting Herrsche's July 6, 2011 will to probate; and granting Gregory counsel fees for the period up to and until the conclusion of the discovery period.

In his lengthy opinion, the judge found that Herrsche's isolation, unavailability, clandestine marriage, and sudden death, plus Mathesius' hostility to Gregory before and after Herrsche's death, were enough to provide reasonable cause to bring the complaint. However, the judge noted that by the time discovery had been completed, the testimony from Gregory's own witnesses made clear that it was Herrsche's decision, not Mathesius', to disallow any contact with Gregory during his brief illness. Both parties moved for reconsideration, which the judge denied on October 10, 2012. This appeal followed.

On appeal, Mathesius argues that Gregory was not entitled to an award of counsel fees pursuant to Rule 4:42-9(a)(3) because she did not have "reasonable cause" for bringing the action. According to Mathesius, the dismissal of Gregory's complaint at the close of Gregory's case and the failure of Gregory's witnesses to support any of her claims demonstrates that the facts known to Gregory before the complaint was filed did not justify her bringing the suit.

We begin our review with the acknowledgment that "'fee 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)). The award of counsel fees is done at the discretion of the trial court, and is awarded substantial deference. In re Probate of Alleged Will of Hughes, 244 N.J.Super. 322, 328 (App. Div. 1990).

"New Jersey follows the American Rule, which requires that parties bear their own counsel fees except in the few situations specifically permitted by statute or by our Supreme Court." In re Farnkopf, 363 N.J.Super. 382, 395 (App. Div. 2003). Probate actions are one such instance where counsel fees may be awarded. Ibid. Indeed, Rule 4:42-9(a)(3) permits the court to award counsel fees in probate actions to be paid out of the estate if the contestant had reasonable cause for contesting the validity of the will.

To satisfy the "reasonable cause" requirement, petitioners seeking "an award of counsel fees must provide the court with 'a factual background reasonably justifying the inquiry as to the testamentary sufficiency of the instrument by the legal process.'" In re Probate of Alleged Will & Codicil of Macool, 416 N.J.Super. 298, 313 (App. Div. 2010) (quoting In re Caruso, 18 N.J. 26, 35 (1955)). In order to award counsel fees to be paid out of the estate,

there must . . . be a showing that the validity of the will 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.
[Caruso, supra, 18 N.J. at 33 (internal quotation marks and emphasis omitted).]

Additionally, the trial judge must "exercise . . . sound discretion to prevent misuse of the judicial process and the mulcting of the estate" in awarding counsel fees in probate. Id. at 36. Bearing that in mind, "'[e]xcept in a weak or meretricious case courts will normally allow counsel fees to both proponent and contestant in a will dispute'" Macool supra 416 N.J.Super. at 313 (quoting In re Reisdorf 80 N.J. 319 326 (1979))

Here Judge Weisenbeck found after hearing extensive testimony that Gregory had demonstrated reasonable cause warranting the award of counsel fees The judge specifically found that a reasonable inference could be drawn as a result of Gregory's interactions with Mathesius that Mathesius was in control of Herrsche and was preventing the prior ready access Gregory had to her father The judge determined however that by the conclusion of discovery the evidence that rightfully gave rise to Gregory's challenge had been completely dispelled Consequently he limited the award of counsel fees to services rendered up to the close of discovery

We perceive no abuse of discretion in the judge's award of partial counsel fees From our independent review of the record we are convinced that the judge's determination was reasonable The judge's finding that at the time of the filing of the caveat and complaint Gregory had a reasonable basis for her challenge to the will is fully supported by the record and entitled to our deference


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