IN THE MATTER OF THE ESTATE OF YVONNE ALBERICCI (P-000365-19, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 26, 2022
• Docket: A-3377-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3377-20

IN THE MATTER OF THE ESTATE OF YVONNE ALBERICCI, deceased. _____________________

Submitted April 25, 2022 – Decided July 26, 2022

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. P-000365-19.

Walsh & Walsh, LLC, attorneys for appellant Dara Albericci (John K. Walsh, Jr., of counsel and on the brief).

Gregg F. Paster & Associates, attorneys for respondents Steven Albericci, Scott Albericci, and Corry Albericci (Timothy Wedeen, of counsel and on the brief; Gregg F. Paster, on the brief).

PER CURIAM Defendant Dara Albericci challenged the probate of the estate of her late

mother, Yvonne Albericci. Dara1 contended her mother's last will and testament

did not bequeath her a share of the estate because her mother was suffering from

a diminished mental capacity as terminal stomach cancer made her susceptible

to undue influence of her brothers, plaintiffs Steven Albericci, Corry Albericci,

and Scott Albericci. The will directed that after payment of debts and funeral

expenses, the "rest, residue and remainder" of Yvonne's estate was to be equally

divided among plaintiffs per stirpes, and her other son, Robert Albericci, and

two daughters, Dara Albericci and Deborah Albericci, were to be excluded from

receiving any share of the estate "for reasons known to each of them."

After a seven-day trial, Chancery Judge Edward A. Jerejian dismissed

Dara's challenge with prejudice, finding there was nothing suspicious about

Yvonne's execution of her will.2 In his oral decision, the judge explained there

was no evidence that the "strong-willed" Yvonne was feeble and not thinking

clearly when she met with a lawyer—recommended by a friend and unknown by

1 For convenience and to avoid confusion, we refer to the Albericci family members by their first names because they share a surname. We mean no disrespect. 2 Steven was appointed executor per the will subject to being qualified by the Surrogate Office. A-3377-20 2 the parties––to prepare and then execute her will. The judge found there was no

evidence that Yvonne was influenced by plaintiffs to leave the entirety of her

estate to them and disinherit Dara. The judge noted plaintiffs had taken care of

their "dying mother," whereas Dara had "alienated" her mother before she

became ill and had not spoken to her in the three years before her death. As

further indication of the daughter/mother estrangement, the judge found that

from the day Dara became aware of her mother's terminal illness until the day

her mother died, she did not visit or call her, nor did she write to her. Dara also

did not attend her mother's funeral service, including the wake or burial, despite

being invited by her siblings.

Despite her unsuccessful challenge, Dara filed a Rule 4:42-9(a)(3) motion

to have the estate pay her attorneys' fees of $87,018.75 and costs of $2,874.54.

Judge Jerejian, applying In re Reisdorf, 80 N.J. 319 (1979), denied the request,

finding Dara failed to establish "reasonable cause" for contesting her mother's

will and it would be unfair for the estate to pay her attorneys' fees and costs .

Essentially reiterating the findings of his prior decision dismissing Dara's will

contest, the judge explained "there was really nothing that even touched

upon . . . undue influence here [by plaintiffs], [or the existence of] a confidential

A-3377-20 3 relationship [between plaintiffs and Yvonne] or suspicious circumstances"

surrounding the execution of Yvonne's will.

Before us, Dara contends the judge abused his discretion because she

established at trial "both a confidential relationship and suspicious

circumstances that constituted reasonable cause to challenge the validity" of her

mother's will. We disagree.

In a will contest, the allowance of counsel fees and costs under Rule

4:42-9(a)(3) is discretionary. Id. at 327. "[F]ee determinations by trial [judges]

will be disturbed only on the rarest of occasions, and then only because of a

clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427,

444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "While

deference will ordinarily be given to discretionary decisions, such decisions will

be overturned if they were made under a misconception of the applicable law."

O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997). Where

the decision turns on a question of law that flows from established facts, the trial

judge's decision is not entitled to any deference, and appellate review is de novo.

Dempsey v. Alston, 405 N.J. Super. 499, 509 (App. Div. 2009).

"Except in a weak or meretricious case, courts will normally allow counsel

fees to both proponent and contestant in a will dispute." Reisdorf, 80 N.J. at

A-3377-20 4 326. An unsuccessful contestant is entitled to costs when he or she shows

"reasonable cause" for bringing a probate challenge, defined as a belief that

"rested upon facts or circumstances sufficient to excite in the probate court an

apprehension that the testator lacked mental capacity or was unduly influenced."

In re Will of Caruso, 18 N.J. 26, 35 (1955). This requirement "works no

hardship upon the contestant and affords some protection to the estate from

speculative and vexatious litigation." Ibid. (quoting In re Sebring's Will, 84 N.J.

Eq. 453, 455 (Prerog. Ct. 1915)). It is incumbent upon the trial judge not to

reduce an attorneys' fees request due to the judge's personal policy of

"discouraging or 'deterring'" fee-shifting cases. In re Probate of the Alleged

Will and Codicil of Macool, 416 N.J. Super. 298, 314 (App. Div. 2010)

With these principles in mind, we have reviewed Dara's arguments and

find them to be without sufficient merit to warrant extended discussion in a

written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Judge Jerejian's denial of Dara's motion for attorneys' fees and costs did

not constitute an abuse of discretion, let alone a clear abuse of discretion. His

factual findings that there was no reasonable cause for Dara's will challenge and,

thus, the estate was not responsible for her attorneys' fees and costs, are

supported by credible evidence in the record. He did not misapply the law.

A-3377-20 5 Hence, we affirm for the reasons substantially stated in the judge's oral decision

and will not disturb his order.

Affirmed.

A-3377-20 6