IN THE MATTER OF THE ESTATE OF JOHN JOSEPH HERRSCHE, III, DECEASED
JENNIE MATHESIUS, Defendant-Appellant JACYLN GREGORY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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; $30, 000 to Gregory;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 ...