I recently blogged about In the Matter of the Estate of Lillian Schmidt, a case that can be seen as a warning to potential plaintiffs seeking counsel fees in probate actions. On August 7, 2012, in In the Matter of the Alleged Will of Allan C. Schenecker, the Appellate Division issued another decision upholding the denial of counsel fees to an unsuccessful contestant in a probate litigation.

In Schenecker, after the decedent’s daughter was unable to locate the decedent’s original will, she filed a complaint seeking to have a photocopy of the will admitted to probate. The decedent’s widow contested the application, alleging that the decedent had destroyed the will prior to his death.

Following a hearing, the probate judge found by clear and convincing evidence that the decedent had not destroyed or revoked his will, and found the widow’s testimony regarding the alleged will destruction was not credible. The photocopy of the will was admitted to probate.

The widow filed two applications seeking to have her counsel fees paid by the decedent’s estate. The trial court denied those applications, finding that the widow’s testimony was not credible and that the widow “did have a weak case, [and] she should have known” that her counsel fee applications would be denied.

On appeal, the counsel fee denial was affirmed. The Appellate Division noted that a court is permitted to award counsel fees in probate actions “if the contestant had reasonable cause for contesting the validity of the will.” (Slip op. at 5). To establish “reasonable cause,” the contestant “must provide the court with “’a factual background reasonably justifying the inquiry as to the testamentary sufficiency of the instrument by the legal process.’” (Id. (citations omitted)). It cited the Supreme Court’s decision in In re Caruso, 18 N.J. 26, 33 (1955), which held that, for fees to be paid from an 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.

(Slip op. at 5).

A copy of the August 7, 2012 opinion can be found here: In the Matter of the Alleged Will of Allan C. Schenecker.