IN THE MATTER OF THE ESTATE OF ANN GRISCHUK (P-250777-16, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3890-18

IN THE MATTER OF THE
ESTATE OF ANN GRISCHUK,
Deceased.
___________________________

Submitted January 11, 2021 – Decided July 27, 2021

Before Judges Sabatino and DeAlmeida.

On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket P-
250777-16.

Harwood Lloyd, LLC, attorneys for appellant/cross-
respondent Michael David (David M. Repetto, of
counsel and on the briefs).

Saul Ewing Arnstein & Lehr, LLP, attorneys for
respondent/cross-appellant Olga Sweeney (Ronald P.
Colicchio, on the briefs).

PER CURIAM

Plaintiff Michael David appeals from the Chancery Division's March 23,

2018 order dismissing with prejudice his complaint to set aside the last will and

testament of his aunt, decedent Ann Grischuk, and the court's February 28, 2019
order to the extent it granted him attorney's fees and costs in an amount less than

he sought. Defendant Olga Sweeney, decedent's sister and administrator of her

estate, cross-appeals from the February 28, 2019 order, arguing that the court

erred when it awarded Michael1 any attorney's fees and costs and denied her

cross-motion for sanctions against him for filing frivolous claims. We affirm.

I.

Decedent passed away on October 15, 2015. She was survived by Olga,

Olga's daughter, Ann Sweeney, Michael, and another nephew, John David.

With the assistance of her longtime attorney, decedent drafted five wills

over an eleven-year period. She executed her final will on July 21, 2015 (the

2015 Will). The 2015 Will was preceded by a will decedent executed in 2012,

which included bequests to Michael of $250,000 and one third of the decedent's

residuary estate (the 2012 Will). The 2015 Will increased the specific bequest

to Michael to $275,000, but eliminated his interest in the residuary estate.

In 2016, Michael filed a complaint in the Chancery Division seeking to

invalidate the 2015 Will. He alleged that decedent lacked testamentary capacity

to execute the will and that Olga exercised undue influence over decedent to

1
Because several people involved in this matter share last names, we refer to
them by their first names. No disrespect is intended.
A-3890-18
2
eliminate Michael's interest in the residuary estate. He requested that the 2012

Will be admitted to probate in place of the 2015 Will.

The trial court held a four-day bench trial, in which it heard testimony

from Michael, Ann, John, the attorney who drafted the 2015 Will and was

present when it was executed, decedent's physician, her longtime companion and

caregiver, who witnessed decedent signing the will, the son of her caregiver, and

an employee of a bank where decedent maintained an account.

On March 23, 2018, the trial court issued a written opinion in which it

found that decedent had testamentary capacity when she executed the 2015 Will.

The court concluded that Michael's testamentary capacity claim was based only

on his subjective opinion that decedent was in failing health when she executed

the will. The court found that Michael's opinion was contradicted by decedent's

medical records and the testimony of her physician, who stated that decedent

was in full control of her faculties during an examination on the day that she

executed the 2015 Will. As the court explained,

[a]ll of the medical records in evidence confirm that
Ms. Grischuk was under no mental incapacity at any
time until her death. The impression conveyed by all
of the testimony and documents admitted into evidence
to this [c]ourt is that Ms. Grischuk was at all times
mentally competent and fiercely independent. The
record is devoid of any evidence that Ms. Grischuk
would or did follow either her sister's, or anyone else's

A-3890-18
3
 dictates, with regard to the 2015 Will, or virtually
anything else.

The court also concluded that Michael had not proven Olga exerted undue

influence on decedent when she executed the 2015 Will. Relying on the

testimony of decedent's attorney, the court found that

[e]ach and every provision of the 2015 Will was
directed by Ms. Grischuk, who clearly and cogently
understood them, and independently confirmed to her
attorney that this Will represented her wishes. [The
attorney] sat with Ms. Grischuk in a private room in her
home, with the door to the room closed, and went
through the 2015 Will with her line by line. He then
went to the dining room to have it executed in front of
the witnesses.

The court found that although Olga was present when decedent met with her

attorney before executing the will, she neither spoke to decedent or her attorney

about its contents or to anyone else to indirectly influence decedent's bequests.

The court found that Olga and decedent "maintained a close, and likely

confidential relationship," shared a joint bank account, and had both been

represented by the attorney who drafted the 2015 Will, and that one could

reasonably conclude that suspicious circumstances surrounded decedent's

change to Michael bequests. The court concluded, however, that Michael's

claim of undue influence "must be rejected when looked at in the context of this

case" because "[t]he facts simply are lacking to prove that [Olga] dominated Ms.

A-3890-18
4
Grischuk in any way or that Ms. Grischuk relied on [Olga] to make any decisions

on her behalf." The court found that decedent

made all of her financial decisions and continued to pay
her own bills until her death . . . . Although Olga . . .
had written checks on the joint account she held with
Ms. Grischuk, these were all at Ms. Grischuk's direction
and for Ms. Grischuk's convenience. [Olga] made no
financial decisions on behalf of Ms. Grischuk nor did
she benefit from any of her activities undertaken on Ms.
Grischuk's behalf.

Finally, the court found "[t]he fact that the specific bequest to [Michael]

is greater in the 2015 Will than in prior wills, leads this [c]ourt to the inescapable

conclusion that Ms. Grischuk did not succumb to any outside influences to

reduce or eliminate him from her estate. In fact, given the costs of her later

years, she may well have increased his specific bequest to more equitably

allocate all of her dwindling assets in her residuary estate to his benefit."

On March 23, 2018, the court entered an order dismissing Michael's

complaint with prejudice and finding the 2015 Will, which had been admitted to

probate, was "in all respects valid and binding . . . ."

On April 19, 2018, Michael filed a motion seeking an award of attorney's

fees and costs from the estate pursuant to Rule 4:42-9(a)(3). Olga opposed the

motion and cross-moved for sanctions against Michael pursuant to N.J.S.A.

2A:15-59.1(a) and Rule 1:4-8 for having filed frivolous claims.

A-3890-18
5
 On February 28, 2019, the court issued an order awarding Michael

$84,030 in attorney's fees and $5,350.91 in costs and denying Olga's motion for

sanctions. In a written statement of reasons, the court concluded that Michael

had reasonable cause to file his complaint based on information then in his

possession. The court concluded, however, that Olga's discovery responses

made clear that Michael's claims were baseless and he should not have

proceeded to trial. As a result, the court awarded Michael only those attorney's

fees and costs related to the testamentary capacity claim up to the point of his

receipt of decedent's medical records and on the undue influence claim up to the

last deposition of a trial witness. The court awarded Michael no attorney's fees

or costs related to trial preparation after August 12, 2017 or for trial.

The entirety of the court's findings of fact and conclusions of law with

respect to the amount of attorney's fees and costs awarded to Michael was:

The [c]ourt, having reviewed all of the services
provided, and finding the time spent and rates
reasonable per the [Rules of Professional Conduct],
awards the petitioner the sum of $89,380.91 in fees and
costs.

The court made no findings of fact and conclusions of law with respect to Olga's

motion for sanctions.

A-3890-18
6
 The parties cross-moved for reconsideration of the February 28, 2019

order. On April 8, 2019, the court entered an order denying the motions and

staying the fee award.2

Michael raises the following arguments on appeal.

POINT I

THE TRIAL COURT'S LEGAL CONCLUSIONS ARE
NOT ENTITLED TO ANY SPECIAL DEFERENCE
AND SHOULD BE REVERSED.

POINT II

THE TRIAL COURT ERRONEOUSLY FOUND
THAT THE DECEDENT HAD THE CAPACITY
NECESSARY TO EXECUTE THE 2015 WILL.

POINT III

THE TRIAL COURT FAILED TO RECOGNIZE
THAT THE 2015 WILL WAS A PRODUCT OF
UNDUE INFLUENCE BY DEFENDANT OVER THE
DECEDENT.

POINT IV

THE COURT PROPERLY GRANTED PLAINTIFF'S
COUNSEL FEE APPLICATION.

2
Each party filed a notice of appeal that included the April 8, 2019 order. They
failed, however, to address the denial of their reconsideration motions in their
merits briefs. Their appeals of the April 8, 2019 order, therefore, are deemed
waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011);
Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2021).
A-3890-18
7
 Olga raises the following arguments in her cross-appeal.

POINT I3

PLAINTIFF'S CLAIM WAS WEAK AND
MERETRICIOUS AND HIS FEE APPLICATION
SHOULD HAVE BEEN DENIED IN ITS ENTIRETY.

POINT II

PLAINTIFF SHOULD BE SANCTIONED FOR
FILING AND MAINTAINING THIS ACTION IN
BAD FAITH.

II.

Our review of a trial court's findings in a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "[W]e do not

disturb the factual findings and legal conclusions of the trial judge unless we are

convinced that they are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

of justice. . . ." Ibid. (quoting In re Tr. Created By Agreement Dated Dec. 20,

1961, 194 N.J. 276, 284 (2008)).

"[T]he findings of the trial court on the issues of testamentary capacity

and undue influence, though not controlling, are entitled to great weight since

3
We modify the numbering of Olga's point headings to reflect only those
arguments raised in her cross-appeal.
A-3890-18
8
the trial court had the opportunity of seeing and hearing the witnesses and

forming an opinion as to the credibility of their testimony." In re Will of Liebl,

260 N.J. Super. 519, 523 (App. Div. 1992) (quoting In re Livingston's Will, 5

N.J. 65, 78 (1950)).

As a general principle, "a very low degree of mental capacity" is required

to execute a will. Id. at 524 (quoting In re Rasnick, 77 N.J. Super. 380, 394

(Cty. Ct. 1962)). To determine whether a testator had capacity, courts must

consider if she was able to "comprehend the property [she was] about to dispose

of; the natural objects of [her] bounty; the meaning of the business in which [she

was] engaged; the relation of each of these factors to the others, and the

distribution that is made by the will." Livingston's Will, 5 N.J. at 73. Capacity

is tested at the time of execution of the will. Id. at 76.

Decedent is presumed to have been of sound mind and competent when

she executed the 2015 Will. Haynes v. First Nat'l Bank, 87 N.J. 163, 175-76

(1981). "[T]he burden of establishing a lack of testamentary capacity is upon

the one who challenges its existence . . . [and] must be [proven] by clear and

convincing evidence." In re Estate of Hoover, 21 N.J. Super. 323, 325 (App.

Div. 1952).

A-3890-18
9
 Michael argues that the trial court erred in rejecting his allegations of

testamentary incapacity because it ignored medical records establishing that

decedent suffered from anxiety and depression and was in a weakened state at

the time she executed the will. He also argues that the court overlooked

testimony from decedent's caregiver regarding her physical and mental state.

Our careful review of the record, however, reveals sufficient competent

and credible evidence supporting the trial court's decision. The record is replete

with evidence that decedent was mentally sharp, and making reasoned, fully

informed decisions at the time she executed the 2015 Will. The attorney who

prepared the will and was present when it was signed had no doubt of decedent's

capacity and understanding of its terms. In addition, decedent's physician

testified that she was of sound mind during a medical exam on the morning she

executed the will. Michael produced no expert report to the contrary.

We reach the same conclusion with respect to the trial court's finding that

Michael did not prove his claim of undue influence. "[U]ndue influence is a

mental, moral, or physical exertion of a kind and quality that destroys the free

will of the testator by preventing that person from following the dictates of his

or her own mind as it relates to the disposition of assets . . . ." In re Estate of

Folcher, 224 N.J. 496, 512 (2016) (alteration in original) (quoting In re Estate

A-3890-18
10
of Stockdale, 196 N.J. 275, 302-03 (2008)). Not all influence is "undue." Mere

persuasion, suggestions, or the opportunity to exert influence over a testator are

not sufficient to invalidate a will. Livingston's Will, 5 N.J. at 73.

A party contesting the validity of a will has the burden of proving undue

influence. Stockdale, 196 N.J. at 303. However, "if the will benefits one who

stood in a confidential relationship to the testator and if there are additional

'suspicious' circumstances, the burden shifts to the party who stood in that

relationship to the testator." Ibid. The trial court found a confidential

relationship between decedent and Olga and a suggestion of suspicious

circumstances. It concluded, however, that the suspicion was dispelled by proof

of decedent's independent and informed decision to execute the will.

As the court noted, decedent changed her will many times between 2005

and 2015, and in each iteration she named Olga, who was in daily contact with

decedent and assisted her with medical appointments, banking, and other tasks,

as a beneficiary. The 2012 Will, which Michael seeks to have admitted to

probate, makes a sizeable bequest to Olga. The record contains no evidence that

Olga pressured decedent to execute the 2015 Will or to alter her bequests to

Michael. While Olga played an important part in decedent's life, Michael

produced no proof that she unduly influenced her sister's decision making.

A-3890-18
11
 We have considered Michael's arguments regarding the trial court's

decisions with respect to the admission of evidence, the scope of discovery, and

the management of witness testimony and conclude they lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

III.

"The decision to award or deny . . . attorney's fees rests within the sound

discretion of the trial court." Maudsley v. State, 357 N.J. Super. 560, 590 (App.

Div. 2003). "[F]ee determinations by trial courts 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)).

"New Jersey follows the American Rule, which requires that parties bear

their own counsel fees except in the few situations specifically permitted by

statute or by our Supreme Court." In re Farnkopf, 363 N.J. Super. 382, 395

(App. Div. 2003). Rule 4:42-9(a)(3) permits the court to award counsel fees in

probate actions to be paid out of the estate if the contestant had reasonable cause

for contesting the validity of the will. "To satisfy the rule's 'reasonable cause'

requirement, those petitioning for an award of counsel fees must provide the

court with a 'factual background reasonably justifying the inquiry as to the

A-3890-18
12
testamentary sufficiency of the instrument by the legal process.'" In re Probate

of Will & Codicil of Macool, 416 N.J. Super. 298, 313 (App. Div. 2010)

(quoting In re Caruso, 18 N.J. 26, 35 (1955)).

In calculating the amount of reasonable attorney's fees, "an affidavit of

services addressing the factors enumerated by RPC 1.5(a)" is required. R. 4:42-

9(b); Twp. of W. Orange v. 769 Assocs., LLC, 198 N.J. 529, 542 (2009). RPC

1.5(a) sets forth the factors to be considered:

(a) A lawyer's fee shall be reasonable. The factors
to be considered in determining the reasonableness of a
fee include the following:

(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;

(3) the fee customarily charged in the locality for
similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by
the circumstances;

(6) the nature and length of the professional
relationship with the client;

A-3890-18
13
 (7) the experience, reputation, and ability of the
lawyer or lawyers performing the services;

(8) whether the fee is fixed or contingent.

Courts determine the "lodestar," defined as the "number of hours

reasonably expended" by the attorney, "multiplied by a reasonable hourly rate."

Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (citing Furst v.

Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)). "The court must not include

excessive and unnecessary hours spent on the case in calculating the lodestar."

Furst, 182 N.J. at 22 (citing Rendine, 141 N.J. at 335-36).

"The amount of attorney fees usually rests within the discretion of the trial

judge, but the reasons for the exercising of that discretion should be clearly

stated." Khoudary v. Salem Cty. Bd. of Soc. Servs., 281 N.J. Super. 571, 578

(App. Div. 1995) (citations omitted); see also R. 1:7-4(a) (requiring a court to

"find the facts and state its conclusions of law thereon in all actions tried without

a jury, on every motion decided by a written order that is appealable as of right,

and also as required by R. 3:29"). "[T]he court must specifically review

counsel's affidavit of services under R. 4:42-9, and make specific findings

regarding the reasonableness of the legal services performed . . . ." F.S. v. L.D.,

362 N.J. Super. 161, 170 (App. Div. 2003). "Without such findings it is

impossible for an appellate court to perform its function of deciding whether the

A-3890-18
14
determination below is supported by substantial credible proof on the whole

record." Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986). "The trial

judge may satisfy the court rules by relying on the facts or reasons advanced b y

a party; however, the court is obligated to make the fact of such reliance

'explicit.'" Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009)

(quoting Pressler, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2009)).

Olga argues that the trial court erred when it granted any attorney's fees

or costs to Michael. She contends he never had reasonable cause to pursue either

the lack of capacity or undue influence claims. She also argues that the trial

court made erroneous findings of fact – that Olga was present when the 2015

Will was prepared, that she transported decedent to her attorney's office to

execute the 2015 Will, and that she expressed her desire that Ann receive a

greater share of decedent's estate than Michael – when it concluded Michael had

reasonable cause to pursue his claims. In addition, Olga argues that if the court

was justified in granting Michael pretrial attorney's fees and costs, it failed to

explain how it determined the amount of fees and costs it awarded to him.

Michael, on the other hand, argues that the trial court erred by limiting the

award of attorney's fees and costs to pretrial proceedings. He contends that he

had reasonable cause to pursue his challenge to the 2015 Will through trial.

A-3890-18
15
 We have carefully reviewed the record and conclude that the court acted

within its discretion when it awarded attorney's fees and costs to Michael and

when it limited those fees and costs to pretrial proceedings. There is sufficient

support in the record for the court's conclusion that Michael had reasonable

cause to allege his testamentary capacity claim until he received decedent's

medical records and to pursue his undue influence claim until the close of

discovery. We, therefore, reject Michael's argument that the court should have

awarded him the entire amount of attorney's fees and costs he sought, as well as

Olga's argument that the trial court erred by not denying Michael's request for

attorney's fees and costs in its entirety.

We agree, however, with Olga's argument that the trial court's decision

awarding attorney's fees and costs to Michael is lacking in precision. The court

did not identify the date on which Michael received decedent's medical records

or explain in any detail the attorney's fees and costs sought by Michael, but

disallowed. In addition, the court issued only a conclusory statement that the

time spent by Michael's attorneys and the hours they expended were reasonable.

We are cognizant of the fact that a remand to allow the trial court to further

explain how it calculated the amount of fees and costs awarded to Michael would

result in additional expenses which would further deplete what appears to be a

A-3890-18
16
relatively modest residuary estate. In addition, the judge who issued the

February 28, 2019 order has retired, necessitating the expenditure of additional

judicial resources and attorney time to familiarize another judge with the record.

In light of these unusual circumstances, rather than ordering a remand we

have undertaken an independent review of Michael's application for attorney's

fees and costs. Olga does not dispute the reasonableness of the hourly rates of

Michael's attorneys. Nor does she identify any specific services or costs that

she contends should be disallowed. Michael sought $196,295 in attorney's fees

and $7,673.65 in costs. The court awarded $84,030 in attorney's fees and

$5,350.91 in costs. These amounts, about forty-two percent of the fees and

seventy percent of the costs sought, approximate the services and costs incurred

through the end of discovery and prior to a period of concentrated trial

preparation. We conclude that the amount of fees and costs awarded reflects an

equitable exercise of the trial court's discretion in light of the record, Michael's

lack of success, and the court's conclusions regarding reasonable cause.

IV.

We turn to Olga's argument that the trial court erred when it denied her

motion for sanctions. Rule 1:4-8 provides for the imposition of sanctions where

an attorney files a frivolous pleading or a motion. "For purposes of imposing

A-3890-18
17
sanctions under Rule 1:4-8, an assertion is deemed 'frivolous' when 'no rational

argument can be advanced in its support, or it is not supported by any credible

evidence, or it is completely untenable.'" United Hearts, LLC v. Zahabian, 407

N.J. Super. 379, 389 (App. Div. 2009) (quoting First Atl. Fed. Credit Union v.

Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)). Therefore, "[w]here a party

has reasonable and good faith belief in the merit of the cause," a motion for

sanctions will be denied. Perez, 391 N.J. Super. at 432.

We review the trial court's decision on a motion for frivolous lawsuit

sanctions for an abuse of discretion. McDaniel v. Man Wai Lee, 419 N.J. Super.

482, 498 (App. Div. 2011). Reversal is warranted "only if [the decision] 'was

not premised upon consideration of all relevant factors, was based upon

consideration of irrelevant or inappropriate factors, or amounts to a clear error

in judgment.'" Ibid. (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App.

Div. 2005)).

Although the trial court did not issue findings of fact and conclusions of

law addressing Olga's motion for sanctions, it found that Michael had reasonable

cause to file his complaint and to pursue his claims through discovery. Implicit

in those findings is the conclusion that Michael's complaint was not frivolous.

In addition, while we agree with the trial court's finding that the denial of

A-3890-18
18
attorney's fees and costs for the post-discovery period was warranted because of

the information disclosed to Michael during discovery, that conclusion does not

equate to a finding that sanctions for pursuing frivolous claims after discovery

were warranted. The trial court's limitation on the award of attorney's fees and

costs was sufficient to resolve Olga's claims that Michael's pursuit of a trial was

wrongful.

Affirmed. The stay of the fee award in the trial court's April 8, 2019 order

is vacated.

A-3890-18
19