IN THE MATTER OF THE ESTATE OF IRVING WAYNE LIPPINCOTT

NOT FOR PUBLICATION WITHOUT THE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-2053-17T1

IN THE MATTER OF THE
ESTATE OF IRVING WAYNE
LIPPINCOTT, Deceased.


               Submitted December 12, 2018 - Decided January 25, 2019

               Before Judges Accurso, Vernoia and Moynihan.

               On appeal from Superior Court of New Jersey,
               Chancery Division, Burlington County, Docket No.
               2016-0275.

               Duane Morris LLP, attorneys for appellants/cross-
               respondents Todd Lippincott, Heather Malave, John
               Juliana, Shane Lippincott, Todd and Tracey Lippincott
               (as parents and legal guardians of their minor children),
               Heather and Anthony Malave (as legal guardians)
               (Christopher L. Soriano, Trevor H. Taniguchi and
               Samantha L. Haggerty, on the briefs).

               Obermayer Rebmann Maxwell & Hippel LLP,
               attorneys    for   respondent/cross-appellant   Anne
               Lippincott (Steven A. Haber and Barbara E. Little, on
               the briefs).

               Obermayer Rebmann Maxwell & Hippel LLP,
               attorneys for respondent Jennifer Teisen (Steven A.
               Haber and Barbara E. Little, on the brief).

PER CURIAM
      This is an appeal solely about counsel fees.1 Upon the death of Wayne

Lippincott on December 23, 2015, his will dated two days before, leaving his

entire estate to his wife of twenty-eight years, Anne Lippincott, was admitted to

probate. Wayne and Anne's marriage was a second one for both, and they had

no children together. Following the death of Wayne's first wife in 1985 and

Wayne and Anne's marriage two years later, however, they raised the three

young children each had as one family. Wayne, however, had become estranged

from his children as adults, and they blamed some of that distance on Anne.

      Wayne's two surviving children and several grandchildren challenged the

will, arguing forgery, undue influence, lack of testamentary capacity and failure

to comply with legal formalities of execution. Following an eleven-day trial,

Judge Hogan vacated the probate of the 2015 will and ordered Wayne's 2000

will, which also favored Anne, admitted to probate. He further ordered that each


1
  Although plaintiffs also argue the court erred in failing to find undue influence,
that argument too is all about the fees. Plaintiffs have already achieved the relief
they sought in having the court set aside the 2015 will. A finding of undue
influence, although not necessary to achieve the relief plaintiffs obtained, would
ordinarily result in a fee award in their favor. See In re Estate of Vayda,  184 N.J. 115, 123 n.4 (2005). Defendants' additional argument that the court erred
in finding Wayne lacked the testamentary capacity to make the 2015 will is
likely also about the fees. A finding upholding the 2015 will would not
ultimately effect a great change in what Anne receives from the estate because,
as the judge noted, Wayne's intent in drafting the 2000 will was to preserve
assets for her. It would, however, almost invariably result in a fee award in her
favor. See In re Peppler's Will,  134 N.J. Eq. 160, 161 (E. & A. 1943).
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                                         2
party would be responsible for his or her own attorney's fees. Both sides appeal

the denial of fees.

      In a meticulously detailed fifty-four page written opinion, Judge Hogan

explained that Wayne had discussed a new will on and off during the three years

preceding his death with the attorney who represented Wayne and his business

partner in connection with their civil engineering firm. Although the attorney

was eventually engaged to draft the will, nothing was ever finalized, as Wayne

never settled on certain specific bequests, even as he became aware his health

was failing. When Wayne's business partner and his wife, both old friends of

the couple, returned to New Jersey in December 2015 after a lengthy trip, they

urged Anne to have Wayne execute his will immediately, and Anne agreed.

Wayne's partner called the lawyer on December 21, advised him of Wayne's

condition and directed him to draft the will. The lawyer followed up with Anne

and, at 5:44 p.m. emailed her drafts of a will, prepared that day, and an advance

directive, previously prepared but not signed. 2 Anne had Wayne sign the will

immediately upon receipt, witnessed by Wayne's business partner and his wife.

      Judge Hogan found that by the time Wayne's partner and his wife visited

on December 21, Wayne had lost the ability to communicate and lacked the


2
  Wayne had endorsed the entry of a "do not resuscitate" order, which Anne
opposed.
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testamentary capacity to execute the will. Further, the judge found that although

Wayne "expressed to his lawyer a desire to leave his estate to his wife" in the

months before his death, he never directed the lawyer to actually prepare a will.

The judge found the provisions of the will the lawyer drafted "were solely what

[the lawyer] believed Wayne intended, and that Wayne had no say or input into

its contents or even into the decision to have such a [w]ill prepared." The judge

further found the will was not properly executed or witnessed.

      Critically, however, Judge Hogan did not find Anne's acts badly

motivated. The judge found Anne was in denial over her husband's imminent

death, and had only acted on Wayne's friend and business partner's advice to

have him execute his will. The judge believed Anne's testimony that she did not

read the will the lawyer prepared before having Wayne sign it and did not know

the contents of his earlier will, although aware it existed. The judge did not find

Wayne's signature was forged and found "no evidence of undue influence on the

part of Anne over her husband to disinherit his children." In a nutshell, the judge

concluded "while Wayne did not have the appropriate capacity and testamentary

intent, neither did Anne have the unconscionable intent to take advantage of her

husband's condition for her benefit."

      Although acknowledging the "entire dispute could have been avoided . . .

had more thought been given by Anne, [Wayne's business partner and his wife],

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and the attorney to the bad idea of securing the preparation and execution of a

[w]ill under the circumstances described," Judge Hogan found plaintiffs' success

in setting aside the 2015 will "a hollow victory of sorts in that the already

significantly depleted estate may offer them very little if anything by way of

inheritance under the 2000 [w]ill." In the 2000 will, Wayne left half his estate

outright to Anne with the other half in trust for her, with what remained at her

death to be distributed to Wayne's children and Anne's children in equal shares.

      Noting the very real possibility that the estate would become insolvent in

the event a significant attorney fee award was entered against it, the judge found:

            Such an outcome would therefore defeat Wayne's
            testamentary intent to leave a substantial part of his
            estate to Anne under the 2000 [w]ill, which ironically
            is the very intent plaintiffs claim to be upholding. This
            highly unusual, factually driven case, drawn from the
            evidence and testimony, demonstrated no intentional
            inappropriate conduct on Anne's part. The court finds
            no reasonable cause to award plaintiffs counsel fees.

      The judge likewise found no basis to award Anne or her daughter fees ,

rejecting their claim that "plaintiffs made an improper, illegal and perverted use

of the legal procedure." 3 Instead he found:

            The totality of circumstances of this case are tragic,
            with considerable mistrust and suspicion on both sides
            that exacerbated this dispute. This mistrust and

3
  Anne's daughter, the alternate executrix under the 2015 will, was named as a
defendant but dismissed at the close of plaintiffs' case.
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                                        5
            suspicion is a hallmark of intra-family litigation. The
            court finds there is no factual basis to support a shifting
            of fees and that the "American rule" concerning fees
            should prevail.

      We affirm, substantially for the reasons expressed by Judge Hogan in his

thoughtful and thorough written opinion. Having reviewed the record, it is plain

Judge Hogan's factual findings are well-supported by the evidence, most of

which was testimonial, and thus are binding on this appeal. See In re Trust

Created By Agreement Dated Dec. 20, 1961, ex rel. Johnson,  194 N.J. 276, 284

(2008) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474,

484 (1974)). The probate judge's decision as to whether to award attorney's fees

is a matter committed to his sound discretion, In re Will of Landsman,  319 N.J.

Super. 252, 271 (App. Div. 1999), which "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).

      This is not one of those rare occasions when we question a fee award. To

the contrary, Judge Hogan's decision that all parties should bear their own fees

honors Wayne's intent to preserve assets for Anne, yet acknowledges her role in

hastily procuring a will and having Wayne execute it at a point where his disease

had robbed him of the capacity to understand it, as well as plaintiffs' decision to

pursue costly litigation in which the best they could hope for was a Pyrrhic


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victory. The parties' arguments to the contrary are without sufficient merit to

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

      Affirmed.




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