By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Litigation Attorney

Courts have historically been stubborn in awarding the winning side of a lawsuit counsel fees.  One limited situation where the court will award counsel fees is in the area of Probate Estate Litigation. With estate litigation becoming more and more commonplace, and the tort of undue influence becoming the central claim, the question remains if an estate can go after someone who unduly influenced a loved one in giving him or her more of the loved one’s money and property upon death.  In the case of the executor of an estate or trustee of a trust, to which they have a fiduciary duty to the estate, the New Jersey Supreme Court in a landmark case In re Niles stated that the estate can go after this person for payment of these fees if they commit tort (a tort is a legal wrong doing) of the undue influence.  The Supreme Court has ruled that an executor who is not an attorney but who acted in bad faith in administering the estate is responsible for the estate’s attorney’s fees because undue influence has been committed.  And in a Supreme Court case just released a few days ago, Innes v. Marzano-Lesnevich, a wife that takes advantage of a husband’s estate may but may not have to pay back attorney’s fees to the estate.

In Innes, Adrian Folcher married Bernice Tambascia-Folcher and executed a will giving Bernice some assets and his children his personal property.  Bernice then executed a deed giving Adrian a one half interest in her Cherry Hill home so it could pass to the children when he died.  But that was not to be.  Another deed was executed by Adrian changing the interest in the home to joint tenants with a right of survivorship, so if one of them died, that person’s one-half interest in the home would pass to the other person.  The deed was executed with her husband Adrian in the car, with the witnesses watching from the bank window and the notary notarizing the will in the car with Adrian.  In addition, new codicils to the will were executed by Adrian giving all his personal property and his estate to Bernice.

Adrian died in October of 2007.  Now owning all of Adrian’s property, Bernice immediately recorded the new deed giving her 100% ownership of the home and drained money from Adrian’s accounts.  Suspecting fraud, the lawyer representing the estate, directed the executrix not to probate the codicil.  Litigation followed, and the trial court awarded $397,309.19 in attorney’s fees and costs that Bernice was to reimburse the estate.  The court held that Bernice had a confidential relationship with Adrian, despite not being the executor of the estate, and there was proof of undue influence.  The Appellate Division affirmed the finding, stating that she was not a fiduciary of the estate, but should be treated as one to make the estate whole because of the relationship she had with Adrian.

The Supreme Court reversed both courts.  It made clear that the relationship of an executor or a trustee has with the estate is necessary to grant attorney’s fees, and a husband-wife relationship is not enough to confer a fiduciary status.  There may be a happy ending to this story, as the Supreme Court remanded to the trial court to reconsider the relief and award different equitable relief to make the estate whole, rejecting Bernice’s arguments that she did not commit fraud upon the estate.  We shall see.

To discuss your NJ Probate Estate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.