In probate court actions, the award of attorney fees to a contestant of a last will & testament, is within the discretion of the Court. Except in a “weak or meretricious” case, Courts will generally allow counsel fees to both sides.
However, when a case involves non-probate assets, such as life insurance policies and pension proceeds, attorneys fees will not be paid out of these assets as they pass by operation of contract and property law and are outside of the decedent’s estate.
In the Matter of the Estate of John Oliva, Jr., Deceased, a case decided by the Superior Court of New Jersey, Appellate Division, on August 25, 2011, the attack was on assets resulting from the decedent’s life insurance policy and pension. The Court found that there was no authority for finding that such assets were part of the probate estate available to satisfy an award of counsel fees. In addition, the Court found that there could only be an award of counsel fees against an executrix personally where there was a “gross abuse of trust and confidence”.
In general, New Jersey Courts follow the “American Rule” which requires each party to pay their own attorneys fees. While there is an exception in probate matters, that exception is limited and only applies to matters involving assets that are part of the probate estate.