Robert Grafer, Jr. was the executor of his mother’s estate. He and his sister Laura were Mrs. Grafer’s only children, and the estate was to be divided between them in equal shares. The probate estate was valued at approximately $237,000, including a house. Non-probate assets totaling $184,000 had been held by Robert and his mother in joint names, or listed Robert as beneficiary.

According to Robert, Laura was not interested in maintaining an interest in their mother’s home, and wished to “cash out” her interest in the estate. Robert made distributions totaling $115,000 to Laura, but failed to provide her with an accounting or appraisal, and did not have her execute a refunding bond and release.

Later, Laura filed a verified complaint seeking to compel Robert to provide an accounting of estate assets, alleging that he had failed to do so despite her repeated requests. Robert denied any impropriety, but filed his own complaint, claiming that Laura had been overpaid her interest in the estate. He also filed an accounting.

Following a two-day hearing, the court approved in part and rejected in part Robert’s accounting, found that the remaining residuary estate totaled $20,965.81, and ruled that the house had been transferred separately by a binding agreement between the parties. The judge permitted the parties to submit applications for fees.

Robert’s counsel fee request was for $15,317.25; Laura’s was for $7,790.00. The court denied both applications, based on the limited value of the residuary estate and the fact that both parties were responsible for the “protracted litigation.” The court noted that “the amount of success obtained by the extensive litigation is minuscule compared with the attorney’s fees.” It therefore followed the American Rule and ordered each party to bear his/her own legal expenses.

Robert appealed.

On appeal, the Appellate Division noted that attorney fee awards in probate matters require a court to “exercise… sound discretion to prevent misuse of the judicial process and the mulcting of the estate.” It found that the probate judge had identified several facts to support his decision, and concluded that Robert’s lack of cooperation, which compelled Laura to file litigation for an accounting she was entitled to, “clearly fell short” of an executor’s duty to act with ordinary prudence and skill.

The appellate court found that the trial judge’s fee denial was not an abuse of discretion, and it affirmed that decision.

A copy of In re Estate of Grafer can be found here – In the Matter of the Estate of Alice Joyce Graffer, Deceased

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