In re the Estate of Reisen

713 A.2d 576, 313 N.J. Super. 623, 1998 N.J. Super. LEXIS 369
CourtNew Jersey Court of Chancery
DecidedJanuary 13, 1998
StatusPublished
Cited by8 cases

This text of 713 A.2d 576 (In re the Estate of Reisen) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Estate of Reisen, 713 A.2d 576, 313 N.J. Super. 623, 1998 N.J. Super. LEXIS 369 (N.J. Ct. App. 1998).

Opinion

HIGGINS CASS, J.S.C. (ret. temporarily assigned on recall).

This matter is before the court on the application of petitioner for an award of counsel fees and costs in connection with the litigation in the above-captioned matter.

PROCEDURAL HISTORY

Pursuant to R. 4:85-1 the petitioner, Diana Reisen, (hereinafter Diana) individually and on behalf of her son Nathaniel Reisen, brought action to set aside the probate of the Last Will and Testament of Morris Reisen, deceased, said will having been executed November 2, 1995 (hereinafter the 1995 will) and to substitute therefore the document executed July 4, 1991, together with a codicil to that will executed in August, 1994 (hereinafter collectively the 1991 will).

Morris Reisen died on December 10, 1995 leaving a probate estate in excess of $3,000,000. His wife, Elizabeth (hereinafter Elizabeth) was the named executrix and trustee under both the wills and she qualified as executrix and trustee under the 1995 will on January 10, 1996. Diana, the estranged wife of the Reisens’ son David, (hereinafter David) brought the action, on the grounds of undue influence and lack of testamentary capacity, to set aside the 1995 will and probate the 1991 will. Though a trustee under the 1991 will, Diana herself was not a beneficiary under either will. She sought to protect the rights of her disabled son, Nathaniel, and to serve as guardian ad litem.

The 1991 will contained several important provisions to benefit Nathaniel, as a child of David. They included the following:

1. Following Elizabeth’s demise, the 1991 Will provides that the two trusts created for her benefit under Articles Sixth and Seventh are to be divided into eight (8) continuing trusts for the benefit of Morris and Elizabeth’s four children, that is, two each for Jane, Elizabeth, Harriet and Diana’s husband, David. The trustees of these continuing trusts are authorized to pay or apply principal of each of the children’s Article Seventh Trust as they [626]*626determine necessary to provide for the health, comfortable support, maintenance and education of such child or that child’s children, as well as for any expenses incurred by the child, or that child’s children because of illness, operation, physical or mental infirmity or other emergency. The Article Seventh Trust provided specifically that distributions may be made for Nathaniel’s benefit during David’s life.

2. The 1991 Will provided that David, like his three siblings, retained the power to appoint, by his will, the principal of the two continuing trusts for his benefit under the Articles Sixth and Seventh Trusts of the Will to a class limited to his issue and, to avoid the generation-skipping transfer tax with respect to the Article Seventh Trust, his creditors.

3. Under the 1991 Will if David fails to exercise his power of appointment over the Article Sixth and Article Seventh Trusts established for his benefit, the principal of both trusts are divided into three equal shares, one for each of David and Diana’s children, Nathaniel, and his non-disabled siblings, Alexander and Vanessa, such share to be held in a separate continuing trust for each child’s benefit. While the trusts established for Alexander and Vanessa would terminate at age twenty-one pursuant to Article Ninth of the 1991 Will, Nathaniel’s trust would continue for his lifetime.

Three weeks before the death of Morris, and after the divorce action between Diana and David had been commenced, Morris executed a new will which substantially changed the provisions which had benefitted Nathaniel. The changes were as follows:

1. An elimination of the authorization to the Trustees under the Article Seventh Trust for David to distribute corpus for Nathaniel’s benefit, restricting that authority to distribute income and principal only to David, thus, entirely divesting Nathaniel’s present beneficial interest under the 1991 Will.

2. Altering David’s powers of appointment under the trusts established for his benefit to allow him to appoint the corpus of [627]*627each trust during his life and also to significantly expand the class of individuals whom David may appoint to any one or more of the issue of his parents. Under the 1995 Will, Nathaniel would become one of ten (10) potential recipients (aside from creditors), rather than one of three together with his two siblings.

3. Altering the provisions in default of David’s exercise of his powers of appointment over the trusts so that the shares for Vanessa and Alexander are divided into separate inter vivos trusts for their individual benefit but Nathaniel’s one-third share is not held in a separate trust for his individual benefit but instead is distributed to an inter vivos trust for the benefit of Vanessa, Alexander and Nathaniel. Thus Nathaniel under the 1995 Will was to share his one-third contingent remainder interest with his siblings, consequently substantially reducing the contingent remainder interest which Nathaniel was granted in the 1991 Will.

4. Under the 1995 Will, Diana was eliminated as a co-trustee for Nathaniel under all trust provisions.

Since Diana had been eliminated as a trustee under the 1995 will she had standing to bring this action. Moreover, since Allen C.B. Horsley (hereinafter Horsley) of the Boston office of the firm was representing Diana in connection with her divorce action, she asked for his admission pro hac vice to avoid duplication of effort.

Opposition to Diana’s complaint and request for admission of Horsley pro hac vice as also a cross motion to dismiss Diana’s complaint was filed and the matter came before me for preliminary hearing on September 6, 1996. At that time 1 granted the petitioner’s application for Horsley’s admission pro hac vice, appointed Diana as guardian ad litem for Nathaniel and denied the Estate’s motion to dismiss petitioner’s complaint.

As the parties wished to begin negotiations to try to settle the case, I stayed the matter to October 15,1996, and then following a conference call of October 28, referred it to our Early Settlement Panel and Samuel Saiber, eminent counsel, succeeded in effectuating a settlement between the parties in December, 1996. Howev[628]*628er, reduction of the terms of settlement to writing had to be further fleshed out and the Stipulation of Settlement was not signed until May 1,1997.

By the terms of the settlement, the probate of the 1995 will was to be set aside and the 1991 will admitted in its place. During the administration of the estate and of the trusts for Elizabeth and David, year-end brokerage statements, 1099’s and K-l’s federal and state income tax returns and lists of asset distributions and expenses will be provided to Diana. She remains as guardian ad litem of Nathaniel. Diana could apply for reasonable attorneys’ fees to be paid from the estate.

A motion was then filed seeking approval of Diana’s counsel fees and costs. Opposition to the amount sought was filed by the estate, both sides submitted memoranda to the court, Horsley submitted a supplemental and more detailed certification of services rendered. I heard oral argument in July 1997, requested and received certain additional information and then reserved decision.

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713 A.2d 576, 313 N.J. Super. 623, 1998 N.J. Super. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-reisen-njch-1998.