THE PARTY’S OVER, HERE’S THE BILL

The legal battle over the estate of Madeline Stockdale – the Spring Lake widow whose estate is worth millions – has been brewing for years Recently, Ronald Solitto – the proponent of a Will that was found to be invalid – vowed that he would appeal the judge’s decision, which invalidated the Will his lawyer drafted for Mrs. Stockdale and validated a prior Will. The prior Will – as many of you probably know from following this story – left the bulk of Mrs. Stockdale’s estate to the Spring Lake First Aid Squad.

The judge ruled that the “Solitto Will” was the product of fraud and undue influence. Essentially, the judge held that the Solitto Will was not Mrs. Stockdale’s will (in the state of mind sense of the word); instead, the Solitto Will was forced upon Mrs. Stockdale, being the product of undue influence. The Solitto Will, in short, was Mr. Solitto’s will (in the state of mind sense of the word), not Mrs. Stockdale’s.

While the Stockdale story is interesting, it has not held much of my interest. For one thing, stories such as the Stockdale case are more commonplace than you might imagine. In fact, if you stripped away her house in Spring Lake, which is three houses from the ocean, her story is very commonplace.

Unfortunately, every day a frail, elderly individual is taken advantage of. The fact that Mrs. Stockdale is rich adds flavor to the story, but the story’s premise is hardly unique or rare; furthermore, even frail, elderly, rich people are taken advantage of with a regularity that might be surprising to many people.

Why then does Mrs. Stockdale’s case hold our attention for so long? Somewhere behind the story is a publicity-hungry individual who is promulgating the stories presence in the media. Who? I don’t know. But the story isn’t unique so the marketing must be good. At least that’s my guess.

On the other hand, I think the judge’s ruling is worthy of some note. Not because the judge tossed out the Solitto Will. It would have been very surprising if the judge hadn’t tossed out that Will. What was interesting to me is that the judge ordered Mr. Solitto to pay the First Aid Squad’s legal fees.

Why do I find this interesting? Because the “American rule” on counsel fees is that each party bears his own counsel fees. In other words, win or loss, each party pays his respective lawyer.

In New Jersey, there are several – about ten – exceptions to the American rule on counsel fees. For instance, in a divorce action, the court can order one party to pay the other’s counsel fees. There is an exception for counsel fees in probate actions. The rule reads as follows: “If 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.”

Now, if you read the rule, it states that if a party (for example, the First Aid Squad) is successful in contesting a Will (for example, the Solitto Will that Mr. Solitto had admitted to probate), then the First Aid Squad is entitled to an allowance of its fees out of the estate (that is, Mrs. Stockdale’s estate). But since the First Aid squad was already the primary beneficiary of Mrs. Stockdale’s true Last Will and Testament, awarding the First Aid Squad counsel fees out of her estate would have been meaningless.

Here, the judge ordered Mr. Solitto to pay the Squad’s fees, not Mrs. Stockdale’s estate. Recently, a judge in another case ruled that if a party rejects an offer of settlement in a probate litigation action and later loses or obtains less than he would have obtained had he accepted the settlement, he can be held responsible for his opponents counsel fees. This is known as “fee-shifting.”

Essentially, fee-shifting is a sanctioned litigation strategy whereby a party offers to settle and if you refuse to settle, you better really believe in your case, because if you lose, you’re going to wind up paying his lawyer’s fees from that point forward.

Mind you, my practice does not include any litigation. I like to plan for clients – estate planning, Medicaid planning – I do not like litigation. But I am a lawyer, so as a lawyer, I’d have to say that the most interesting aspect of the judge’s decision is his decision to have Mr. Solitto pay the First Aid Squad’s legal fees.

Mr. Solitto may appeal the judge’s decision in its entirety. The only part of that appeal that I’ll be interested in seeing is whether the counsel fee award is upheld.