Plaintiffs Prevail In Removing Executor, But Lose Motion For Legal Fees

A few months prior to his death in 2008, the decedent executed a codicil to his will, in which he appointed the defendant as executor of his estate, and included the defendant as a beneficiary. The defendant-executor was a relative of the decedent, and a New Jersey attorney.

In 2011, a beneficiary of the estate filed a complaint seeking to compel the executor to provide an inventory and distribute the estate, claiming that the executor had unduly delayed the administration. The judge ordered the defendant-executor to produce an accounting; the defendant failed to do so. In 2015, plaintiffs filed suit to remove the executor, and sought an inventory and distribution of the estate. The court ordered the executor to distribute the estate; the defendant provided an accounting but did not distribute the estate as ordered. After a hearing in January 2016, the court ordered the executor to settle the estate within thirty days; again, the defendant failed to comply with the order. In June 2016, the court ordered the executor to provide a final accounting by July 15; the defendant failed to do so. In January 2017, the court removed the defendant as executor of the estate.

Plaintiffs made a motion for attorney fees against the defendant-executor, arguing that his failure to timely administer the estate necessitated their litigation. The probate court denied the motion for fees, concluding that the litigation “would not fall within any of the recognized exceptions to shift the responsibilities of paying attorney fees.”

Plaintiffs appealed, arguing that the probate court had abused its discretion in denying their application for legal fees. The Appellate Division disagreed with the plaintiffs, and affirmed the probate court’s decision.

The appeals court began by noting that New Jersey follows the “American Rule,” in which parties bear their own legal fees, except under certain exceptions. It concluded that the exception to the American Rule for certain probate fees, as set forth in New Jersey Court Rule 4:42-9(a)(3), did not apply. The plaintiffs had not challenged the probate of the will or codicil, but merely filed suit to ensure that those instruments were probated and the estate finalized; therefore, the case “did not involve the refusal of an action for probate or a challenge to the validity of the will or codicil.”

Plaintiffs also argued that attorney fees should be awarded under the Packard-Bamberger exception. Again, the appellate court disagreed. Packard-Bamberger was a legal malpractice case, in which there was a clear attorney-client relationship between the parties. The court found that here, even assuming there had been an attorney-client relationship between plaintiffs and the defendant, the plaintiffs had never made a claim for legal malpractice, or demonstrated any intentional misconduct by the defendant-executor. Consequently, the Appellate Division ruled that the fee shifting provisions of Packard-Bamberger did not apply.

A copy of In re Estate of Balassone can be found here: [gview file=””]


Donald D. Vanarelli, Esq. to Present on Guardianships and Medicaid Planning at the 2021 Elder Law College