SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3836-15T1

IN THE MATTER OF THE 

ESTATE OF FELIX FORNARO,

Deceased.

_____________________________

Argued April 30, 2018 – Decided May 20, 2019

Before Judges Accurso, O'Connor and Vernoia.

On appeal from Superior Court of New Jersey, 

Chancery Division, Morris County, Docket No. P000172-13.

Vincent R. Kramer, Jr. and Wolfgang G. Robinson 

argued the cause for appellant/cross-respondent 

Carmine C. Fornaro; Vincent R. Kramer, Jr., of 

counsel and on the brief; Wolfgang G. Robinson, on 

the brief. 

Jennifer L. McInerney argued the cause for 

respondent/cross-appellant Linda Fornaro Picone 

(Torzewski & McInerney, LLC, attorneys; Jennifer L. 

McInerney, of counsel and on the briefs).

Stephen J. Pagano argued the cause for pro se 

respondents Riker Danzig Scherer Hyland & Perretti, 

LLP, and Weiner Lesniak, LLP (Jonathan P. Vuotto, 

of counsel and on the brief; John M. Loalbo and 

Hannah J. Greendyk, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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The opinion of the court was delivered by 

O'CONNOR, J.A.D.

In this probate matter, Felix Fornaro (decedent) executed a will in 

December 2011, which provided that his daughter, plaintiff Linda Picone, 

receive ten percent and his son, defendant Carmine Fornaro, eighty percent of 

his residuary estate. Plaintiff and defendant were decedent's only children. 

The remaining ten percent of the residuary estate is to be distributed among 

decedent's grandchildren. The will revoked decedent's prior will, executed in 

1999, which had equally divided his residuary estate between his two children. 

Decedent died in December 2012 at the age of eighty-nine. 

Approximately four months after the will was admitted to probate, plaintiff 

filed a complaint in the Probate Part of the Chancery Division, seeking, among 

other things, to invalidate the 2011 will. Plaintiff alleged decedent suffered 

from physical and mental afflictions that made him frail and powerless, and 

that defendant took advantage of decedent's vulnerabilities to gain undue 

influence over and cause him to execute the 2011 will. Plaintiff also contends 

decedent lacked testamentary capacity when he executed that will. 

During trial, the court dismissed the latter claim and, at the end of the 

trial, dismissed the claim of undue influence as well. On appeal, plaintiff 
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challenges the dismissal of her claim of undue influence.1 The principal 

argument she asserts is the trial court erred by failing to find defendant and 

decedent had a confidential relationship. There is no question that if "there is 

a confidential relationship [between the testator and will proponent] coupled 

with suspicious circumstances, undue influence is presumed and the burden of 

proof shifts to the will proponent to overcome the presumption." In re Estate 

of Stockdale, 196 N.J. 275, 303 (2008). 

Both before trial and at the conclusion of her case at trial, plaintiff 

requested the court to find there was a confidential relationship between 

defendant and decedent, as well as suspicious circumstances. The court denied 

the pretrial motion on the ground there was insufficient evidence of suspicious 

circumstances; the court did not make a ruling on whether there was a 

confidential relationship. As both factors were not met, there was no 

presumption of undue influence and the burden of proof did not shift to 

defendant. 

The court again rejected plaintiff's motion at the conclusion of her case, 

finding there were questions of fact about whether defendant and decedent had 

a confidential relationship; the court did not make a ruling on whether there 

 

1

 Plaintiff does not challenge the trial court’s decision to dismiss her claim 

decedent lacked testamentary capacity when he executed the 2011 will. 
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were suspicious circumstances at that time. Because one of the factors 

necessary to establish a presumption of undue influence was not met, the court 

declined to shift the burden of proof to defendant. 

 At the conclusion of the trial, the court determined defendant did not 

exert undue influence over decedent and upheld the 2011 will, entering a 

judgment in defendant's favor on November 13, 2015. The court found it 

"clear up until almost the end [of decedent's life]" that decedent resisted 

defendant's "intervention." The court stated it had "no difficulty concluding 

that [decedent] was a very strong-willed man and capable of exercising his 

own free will well into 2012." 

In addition, the court revisited the issue whether the burden of proof 

should have been shifted to defendant. After considering all of the evidence, 

the court found there were suspicious circumstances, but that there was no 

confidential relationship between defendant and decedent. Because of the 

absence of a confidential relationship, there was no presumption of undue 

influence and the burden of proof did not shift to decedent. 

After entry of the judgment, plaintiff and defendant each filed a motion 

for counsel fees and costs. At the time defendant's motion was filed, the law 

firm Riker, Danzig, Scherer, Hyland & Perretti, LLP (Riker) represented 

defendant as the executor of decedent's estate. Before Riker represented 
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defendant, the law firm Weiner Lesniak, LLP (Weiner) represented him but, 

during the course of litigation, the attorney handling the matter for defendant 

joined Riker. The motion filed by Riker on defendant's behalf also sought the 

fees and costs defendant incurred while represented by the Weiner firm. While 

both motions were pending, defendant advised Riker he opposed the motion it 

had filed on his behalf. Riker terminated its representation of defendant, who 

retained new counsel and filed a response to Riker's motion. 

The court entered an order on March 24, 2016, which provided an 

allowance of $429,662.70 to plaintiff for her counsel fees. The order denied 

her request for costs. The court entered another order on March 24, 2016, 

which granted defendant an allowance of counsel fees and costs as follows: 

(1) $148,711 for the legal services rendered to him by the Weiner firm, and 

$2,330.03 in costs; and (2) $519,127.35 for the legal services rendered to him 

by Riker, and $22,032.80 in costs. On April 8, 2016, the court entered an 

order stating Weiner's and Riker's counsel fees and costs are to be paid by the 

estate. 

Defendant appeals from the March 24, 2016 order that grants an 

allowance of counsel fees to plaintiff. He claims plaintiff did not have 

reasonable cause to challenge the probate of the will. Defendant further 
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contends that, even if plaintiff were entitled to fees, the trial court failed to 

consider the necessary factors before awarding fees to her. 

Defendant also appeals from the March 24, 2016 order that grants an 

allowance of counsel fees and costs to Weiner and Riker. Defendant contends 

the court failed to take into consideration the requisite factors before 

authorizing fees and costs to his former attorneys. Finally, defendant 

challenges the April 8, 2016 order. He maintains the court lacked the authority 

to order the estate to pay Weiner and Riker directly for their fees and costs. 

Plaintiff cross appeals from the February 20, 2015 order, which denied 

her pretrial motion to shift the burden of proof to defendant on her claim of 

undue influence. She also cross appeals from the judgment. She argues that, 

because defendant failed to rebut the presumption of undue influence, the 

judgment should have been entered in her favor and the will set aside. Finally, 

she cross appeals from the March 24, 2016 order that denied her costs. She 

asserts that as she had reasonable cause to challenge the probate of the will, 

she is entitled to an allowance for costs. 

After reviewing the record and applicable legal principles, we affirm in 

part, reverse in part, and remand for further proceedings. 
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I

At that time of his death, decedent was living with his second wife of 

twenty years.2 For many years preceding his death, plaintiff, defendant, and 

decedent lived in proximity to each other. Plaintiff lived on one and 

defendant on the other side of decedent's house. It is not disputed that, at the 

time of his death, decedent had owned various rental properties for a number 

of years and was enmeshed in various business and legal matters. During the 

last two years of his life, decedent's health deteriorated, principally from 

emphysema. 

In support of its conclusion there was no undue influence or even a 

confidential relationship, the trial court made the following findings of fact. 

As decedent's health declined over the last two years of his life, defendant 

provided assistance to decedent, but only in the form of driving him to some 

doctor's appointments and, on occasion, rendering help of a physical nature in 

decedent's businesses and legal affairs. However, even in 2012, decedent 

continued to drive, visit his rental properties, and collect rent from tenants.

A realtor with whom decedent consulted from 2010 to his death testified 

decedent remained involved in his properties until he died. The realtor also 

 

2

 Decedent’s widow did not contest decedent’s will and is not a party to this 

litigation. 
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testified that, to her observation, decedent was strong-willed, mistrusted 

everyone, and never did what he did not want to do. 

In 2012, decedent consulted with a financial advisor to discuss estate 

taxes and other matters. The advisor testified decedent was lucid when they 

interacted. The advisor had an opportunity to observe both defendant and 

decedent and concluded that, although both had "dominant" personalities, 

decedent was the more dominant of the two and able to "ma[k]e up his own 

mind."

Decedent met with an estate attorney, Edith Heyman, Esq., in fall 2012, 

because he wanted to review his estate plan. At one point, Heyman spoke to 

defendant on the telephone while she was meeting with decedent. Defendant 

informed Heyman he wanted decedent's money to go into a partnership, from 

which he would give decedent an allowance. Decedent rejected defendant's 

suggestion and the partnership was never created. 

Vincent Kramer, Esq., who represented decedent in various matters 

before decedent executed the 2011 will, testified decedent did not want 

defendant involved in his business and legal affairs. The attorney also testified 

that, in 2009, decedent informed him that he wanted plaintiff removed from his 

will. Kramer was to have drafted a new will but, because he delayed in doing 

so, another attorney, Stephen Wolff, Esq., ultimately drew up the 2011 will. 
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Wolff testified decedent knew what he was doing at the time he signed 

the will. The court also noted, presumably because of an allegation defendant 

and Wolff were friends, that Wolff was actually a friend of defendant's son. 

Also, Wolff had rendered legal services for decedent other than drafting his 

2011 will. 

The court acknowledged one of plaintiff's two medical expert witnesses, 

psychiatrist Paul Rosenberg, M.D., testified that decedent was diagnosed with 

dementia in June 2012, just six months after the will was executed. Rosenberg 

also testified that, when decedent signed the will in December 2011, he was 

subject to the influence of others. However, the court observed, Rosenberg 

never met decedent. 

The court noted plaintiff's other medical expert witness, Paul Cantillone, 

M.D., a neuropsychiatrist who treated decedent from October 2011 to 

December 2012, testified decedent could not be influenced by anyone at the 

time he signed the will. Cantillone further testified that decedent told him he 

was disappointed in and suspicious of defendant. 

The court found decedent's relationship with plaintiff had deteriorated 

well before he executed the 2011 will. Decedent harbored resentment toward 

plaintiff because he believed she had not fully repaid a loan he had extended to 

her. Although plaintiff testified she had repaid the loan in full, the court 
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pointed out the fact she may have done so is irrelevant. What mattered was 

decedent believed she had not repaid the loan. In addition, plaintiff and 

decedent argued over the use of a common driveway, which resulted in 

litigation. Finally, the court observed that, before he changed his will, 

decedent avoided being in plaintiff's presence. 

The court did determine there were suspicious circumstances. First, 

there was no evidence of how decedent got to Wolff's office on the day he 

signed the will. Although decedent was driving at the time, Wolff's office was 

farther in distance than decedent normally drove. Second, according to his 

telephone records, defendant placed a number of telephone calls to Wolff 

around the time the will was executed. 

However, the court found defendant and decedent did not have a 

confidential relationship. The court observed, "[o]ther than [defendant] being 

his son, living nearby and giving some physical assistance, the court does not 

consider that this was a confidential relationship as defined in the context of 

undue influence." In addition, the court found defendant did not exert undue 

influence over decedent. In fact, the court observed that decedent resisted 

defendant's "intervention" and was 

a very strong-willed man and capable of exercising his 

own free will well into 2012 . . . . The overwhelming 

weight of the evidence leads the [c]ourt to conclude 
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that [decedent] was not subject to the influence of 

anyone and exercised his own free will in reducing the 

inheritance of the plaintiff. This plan to minimize 

[plaintiff's] share was in his mind for several years 

and was discussed with several people . . . . He was 

strong-willed and could not be dominated by anyone. 

This condition lasted well into 2012.

II

Because our disposition of this issue affects the resolution of other 

issues on appeal, we first address plaintiff's contention the court erred when it 

failed to find there was a confidential relationship between defendant and 

decedent. Plaintiff argues there was such a relationship and, given the court's 

finding there were suspicious circumstances, there was a presumption of undue 

influence and the burden of proof should have shifted to defendant. 

There is a presumption a "testator was of sound mind and competent 

when he executed the will." Gellert v. Livingston, 5 N.J. 65, 71 (1950). 

However, if a testator executes a will as a result of undue influence, the will 

can be set aside. Stockdale, 196 N.J. at 302. "The burden of proving undue 

influence is upon the person asserting it and it must be clearly established." 

Matter of Will of Liebl, 260 N.J. Super. 519, 527 (App. Div. 1992)(quoting 

Gellert, 5 N.J. at 71).

"[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 
A-3836-15T1

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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) (alterations in 

original) (quoting Stockdale, 196 N.J. at 302-03). The influence must be such 

that, instead of following the dictates of his own mind, the testator accepts 

instead the domination and influence of a person he is unable to resist or 

overcome. See Pascale v. Pascale, 113 N.J. 20, 30 (1988); Liebl, 260 N.J. 

Super. at 527-28. 

It is not necessary to prove that undue influence was exercised at the 

exact time of execution of the will. In re Raynolds' Estate, 132 N.J. Eq. 141, 

151-52 (Prerog. Ct. 1942), aff'd, 133 N.J. Eq. 344 (E. & A. 1943). However, 

"whenever exerted, whether months or years before, [the undue influence] 

must still be operative upon the testator's mind in the very act of executing the 

instrument and be an effective cause of the disposition made therein." Id. at 

152 (quoting In re Everett's Will, 166 A. 827, 830 (Vt. 1933)). 

As stated, the will contestant has the burden of proving undue influence. 

However, if there is a confidential relationship and suspicious circumstances, 

"undue influence is presumed and the burden of proof shifts to the will 

proponent to overcome the presumption" by a preponderance of the evidence. 

Stockdale, 196 N.J. at 303.
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A confidential relationship exists "when the circumstances make it 

certain that the parties do not deal on equal terms, but on the one side there is 

an overmastering influence, or, on the other, weakness, dependence or trust, 

justifiably reposed." In re Stroming's Will, 12 N.J. Super. 217, 224 (App. Div. 

1951); see also Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402 (App. 

Div. 1952). Such relationship also exists if the testator, "repose[s] by reason 

of [his] weakness or dependence or where the parties occupied relations in 

which reliance is naturally inspired or in fact exists[.]" In re Hopper's Estate, 

9 N.J. 280, 282 (1952) (citing In re Heim's Will, 136 N.J. Eq. 138 (E. & A. 

1945)). However, although "[a]mong the most natural of confidential 

relationships is that of parent and child[,]" Pascale v. Pascale, 113 N.J. 20, 34 

(1988), "the mere existence of family ties does not create . . . a confidential 

relationship." Vezzetti v. Shields, 22 N.J. Super. 397, 405 (App. Div. 1952).

In addition to establishing there was a confidential relationship, a will 

contestant must also show suspicious circumstances in order to create a 

presumption of undue circumstances and shift the burden of proof to the will 

proponent. Stockdale, 196 N.J. at 303. "Suspicious circumstances" are those 

circumstances that "require explanation." Haynes v. First Nat'l State Bank, 87 

N.J. at 176 (quoting Rittenhouse, 19 N.J. at 378-89). "Suspicious 
A-3836-15T1

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circumstances, for purposes of this burden shifting, need only be slight." 

Stockdale, 196 N.J. at 303.

It is well established that a trial court's factual findings are accorded 

deference if they are supported by substantial credible evidence. Rova Farms 

Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). Such findings 

are entitled to great weight because the trial court had the opportunity to see 

and hear the witnesses and form opinions about the credibility of their 

testimony. Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011).

We have examined the record and the trial court's factual findings. We 

determine they are well supported by the evidence, with one exception. Dr. 

Cantillone did not comment upon whether decedent was subject to the 

influence of others when he signed the will. However, this one misstatement 

by the court does not affect the soundness of its overall findings. Further, we 

note the doctor did observe decedent was "strong-willed," and the doctor 

formed the impression decedent was not reliant upon anyone. Therefore, but 

for the fact Dr. Cantillone did not in fact testify decedent was susceptible to 

the influence of others when he signed the will, the court's factual findings are 

well-grounded in the evidence. 

We review de novo questions of law and the legal consequences that 

flow from the established facts. Manalapan Realty, LP v. Twp. Comm. of 
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Manalapan, 140 N.J. 366, 378 (1995). Here, we are satisfied the trial court's 

conclusions of law are also well supported by the facts as found by the court. 

We affirm the court's determination there was no confidential relationship and 

that defendant did not exert undue influence over decedent for essentially the 

same reasons expressed by the trial court. 

There is ample evidence decedent did not permit defendant to take any 

action pertaining to decedent with which decedent did not agree. As various 

witnesses noted, decedent was defiant, strong-willed, independent, and 

stubborn. Even Dr. Robinson commented decedent was not "directable" in 

December 2011. The facts as found by the court do not provide a basis to 

conclude that either defendant dominated decedent or decedent was powerless 

to resist his son, see Pascale, 113 N.J. at 31-32, or that defendant exerted 

influence of a nature that destroyed decedent's free will and impaired him from 

following the dictates of his own mind, see Stockdale, 196 N.J. at 302-03. 

Plaintiff references certain evidence that she contends supports a finding there 

was a confidential relationship and, thus, the burden of proof should have been 

shifted to defendant. In light of the trial court's findings of fact, plaintiff's 

argument is without sufficient merit to warrant discussion in a written opinion, 

see R. 2:11-3(e)(2)(E), but we make the following observation. 
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Plaintiff notes there is evidence decedent had some mild cognitive 

impairment around the time he signed the will. She argues such evidence 

supports her claim there was a confidential relationship between defendant and 

decedent. However, plaintiff's claim decedent lacked testamentary capacity3

when he signed the will was dismissed by the trial court, and plaintiff does not 

challenge that decision on appeal. Plaintiff is not maintaining decedent lacked 

the requisite mental capacity when he executed the will. Her argument is there 

was a confidential relationship which, together with the finding of suspicious 

circumstances, warranted shifting the burden of proof to defendant. For the 

reasons stated, we reject this argument as unsupported by the evidence. 

Plaintiff maintains the court erred when it denied her request for costs. 

We disagree. "Authority for assessing costs must be found in either the Court 

Rules or a statute. The costs that are contemplated in the Court Rules are in the 

usual case those authorized in N.J.S.A. 22A:2-8." Buccinna v. Micheletti, 311 

N.J. Super. 557, 561 (App. Div. 1998) (citation omitted). Rule 4:42-8(a) 

provides costs may be awarded to a prevailing party; plaintiff did not prevail 

 

3

 "Testamentary capacity exists where the testator can comprehend the 

property he is about to dispose of, the natural objects of his bounty, the 

meaning of the business he is engaged, the relation of each of those factors to 

the others, and the distribution that is made by the will." In re Probate of 

Alleged Will of Landsman, 319 N.J. Super. 252, 267 (1999).
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here. N.J.S.A. 22A:2-8 merely sets forth those costs to which a party is 

entitled if such party is awarded or allowed costs by law. 

III

We turn to defendant's contentions on appeal. Defendant argues the trial 

court erred by: (1) awarding plaintiff counsel fees; (2) failing to consider the 

factors in R.P.C. 1.5(a) and In re Bloomer's Estate, 37 N.J. Super. 85, 94 (App. 

Div. 1955), before ordering the estate to pay counsel fees to plaintiff, as well 

as counsel fees and costs to Weiner and Riker; and (3) permitting defendant's 

fees and costs to be paid directly to Weiner and Riker from the estate. We 

decline to consider the last contention, because it was not raised before the 

trial court and is not a matter that concerns the jurisdiction of the court or is of 

great public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 

(1973). 

A

Defendant contends plaintiff is not entitled to fees because she did not 

have reasonable cause to contest the will. We disagree. 

Rule 4:42-9(a)(3) provides, "[i]f probate is granted, and it shall appear 

that the contestant had reasonable cause for contesting the validity of the will 

or codicil, the court may make an allowance to the proponent and the 

contestant, to be paid out of the estate." "To satisfy the rule's 'reasonable 
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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 

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)). 

Here, the trial court found plaintiff had reasonable cause to contest the 

2011 will given that, when decedent signed it, he was in declining physical and 

mental health, in his late eighties, and a friend of defendant's son drafted the 

will instead of the attorney decedent customarily retained for such matters. 

Although in the final analysis the evidence does not support a finding of undue 

influence or that there was a confidential relationship to warrant shifting the 

burden of proof to defendant, we are satisfied plaintiff had reasonable cause to 

contest the validity of the will for the reasons found by the trial court. 

Defendant argues that if a will contestant cannot marshal sufficient 

evidence to show there is a presumption of undue influence, then the 

contestant does not have reasonable cause for contesting the validity of the 

will. Defendant did not cite and we were unable to find any authority to 

support such a premise. 
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B

Defendant contends that, because the court failed to consider the factors 

in R.P.C. 1.5(a) and Bloomer, 37 N.J. Super at 94, before awarding fees to 

plaintiff and fees and costs to Weiner and Riker, the March 24, 2016 and April 

8, 2016 orders must be reversed and the matter remanded for further factfinding.

As noted, Rule 4:42-9(a)(3) provides that a trial court may make an 

allowance of attorney fees to the proponent and to the contestant of a will. 

Here, the court determined both parties were entitled to fees. Rule 4:42-9(b) 

requires that an application for counsel fees be supported by an affidavit 

addressing the factors in RPC 1.5(a), which states that a lawyer's fee shall be 

reasonable, and the factors to be considered in determining the reasonableness 

of a fee shall 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; 

(7) the experience, reputation, and ability of the 
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lawyer or lawyers performing the services; (8) 

whether the fee is fixed or contingent.

[RPC 1.5(a).]

In addition, the factors recognized in Bloomer, 37 N.J. Super. at 94, are 

also considered in estate matters. See Twp. of West Orange v. 769 Associates, 

198 N.J. 529, 542 (2009). The Bloomer factors are: 

(1) the amount of the estate and the amount thereof in 

dispute or jeopardy as to which professional services 

were made necessary; (2) the nature and extent of the 

jeopardy or risk involved or incurred; (3) the nature, 

extent and difficulty of the services rendered; (4) the 

experience and legal knowledge required, and the 

skill, diligence, ability and judgment shown; (5) the 

time necessarily spent by the attorney in the 

performance of his services; (6) the results obtained; 

(7) the benefits or advantages resulting to the estate, 

and their importance; (8) any special circumstances, 

including the standing of the attorney for integrity and 

skill; and (9) the overhead expense to which the 

attorney has been put. 

[37 N.J. Super at 94.]

After a court takes into consideration the factors in RPC 1.5(a) and 

Bloomer and establishes the reasonable hourly rate an attorney is permitted to 

charge in a matter, the court must then determine the "lodestar," which is the 

reasonable hourly fee that should have been charged multiplied by the number 

of hours expended. Macool, 416 N.J. Super. at 313; Rendine v. Pantzer, 141 

N.J. 292, 334-35 (1995). Hours are not "reasonably expended if they are 
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excessive, redundant or otherwise unnecessary," Rendine, 141 N.J. at 335 

(quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)), and the 

hours must not be more than those which a competent attorney would have 

spent to obtain a comparable result. Id. at 336. 

Here, the court did not conduct the proper analysis before awarding 

attorney's fees. In addition to considering the aforementioned factors and 

applicable legal authority, a court must expressly state its findings of facts and 

conclusions of law. R. 1:7-4(a). "Without the benefit of findings and 

conclusions, we can only speculate about the reasons for a trial court's 

decision." S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 293 N.J. Super. 395, 

409 (App. Div. 1996) (quoting Rosenberg v. Bunce, 214 N.J. Super. 300, 304 

(App. Div. 1986)). Here, the reasons provided by the trial court for awarding 

fees to plaintiff consisted of only the following brief statement:

[T]his court finds that this as a complex probate action 

that required the testimony of several doctors, in 

addition to the beneficiaries' testimony under the Will. 

Defendant has not met its burden in proving that 

plaintiff's counsel fees were unreasonable. As such, 

this court grants plaintiff's motion for counsel fees in 

the amount of $439,462.70.

In its discussion about Weiner's and Riker's request for fees and costs, 

the court summarized the parties' respective positions and provided an analysis 

of these firms' entitlement to charge certain overhead expenses. However, the 
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court's reasons for making an allowance for their costs and fees were very 

limited, consisting only of the following:

Due to the estate and defendant being the prevailing 

party in this action, Riker Danzig (and Weiner 

Lesniak) are entitled to counsel fees under R. 4:42-

9(a)(3) and litigation costs under R. 4:42-8(a). 

Defendant does not dispute this fact, but does dispute 

the reasonableness of the fees being sought. 

First, defendant asserts that the amount of hours spent 

defending the estate are unreasonable pursuant to 

R.P.C. 1.5(a). However, this court is unpersuaded by 

defendant's conclusory allegations that Riker Danzig 

and Weiner Lesniak spent too many hours successfully 

defending this lengthy litigation . . . .

In light of the foregoing, this court grants Riker 

Danzig's motion for counsel fees and litigation costs 

for both firms . . . . [T]his court grants plaintiff's and 

Riker Danzig/Weiner Lesniak's motions for fees 

pursuant to the contents of this Statement of Reasons. 

The court is aware that this decision will substantially 

impact the estate. That is, of course, regrettable. The 

court cannot second guess counsel on whether a 

certain service was necessary; for example, were two 

attorneys necessary at the stages [sic] of the litigation. 

That issue is best left to client and counsel as the 

matter proceeds. 

Because we cannot discern from the court's opinion whether or how it 

applied the subject factors, we are constrained to reverse the March 24, 2016 

and April 8, 2016 orders, and remand the issue of counsel fees and costs for 

further fact finding. In addition, as is apparent from the passages cited above, 

the trial court believed a party has the burden of proving his or her adversary's 
A-3836-15T1

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fees were unreasonable. That assumption was incorrect. The court must make 

its own determination of whether fees are reasonable, after considering the 

subject factors and other applicable law. 

Also, the court was under the impression it could not question whether a 

service was necessary. As previously noted, our Court in Rendine required an 

examination of the hours to determine if they were "reasonably expended." 

Hours that are "excessive, redundant or otherwise unnecessary" are not 

reasonably expended and, thus, are not reasonable. Rendine, 141 N.J. at 335-

336. The trial court's misunderstanding of its role when considering an 

application for costs and fees provides another basis to reverse the subject 

orders.

Finally, defendant asserts the court erred when it found Weiner and 

Riker were permitted to recover certain overhead expenses from the estate. 

We affirm the court's ruling on this issue for the reasons expressed in its 

written opinion. 

Affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion. We do not retain jurisdiction.