In the Matter of the Estate of Allan D. Yorkowitz

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3735-24 IN THE MATTER OF THE ESTATE OF ALLAN D. YORKOWITZ, DECEASED. ________________________ Submitted September 23, 2026 – Decided October 7, 2026 Before Judges Marczyk and Jacobs. On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. 265728. Charles C. Berkeley, attorney for appellant/cross- respondent Jeffrey Suckow. Lindabury McCormick Estabrook & Cooper, attorneys for respondent/cross-appellant Billy Perialis (Steven Backfisch, of counsel and on the brief). PER CURIAM Defendant Jeffrey Suckow appeals from the Chancery Division's June 10, 2025 order reaffirming its previous orders dated: November 3, 2021; November 9, 2021; February 15, 2022; February 8, 2023; and April 13, 2023. Plaintiff Billy Perialis cross-appeals from the court's June 10, 2025 order affirming its prior February 8 and April 13, 2023 orders denying: the payment of additional attorneys' fees to Triarsi, Betancourt, Wukovits, and Dugan, LLC (the Triarsi firm), Perialis's trial attorneys; payment of Perialis's executor's commission; and payment of Samuel Herschkowitz, M.D.'s expert fee. We affirm. I. In August 2018, decedent Allan D. Yorkowitz drafted a will devising certain real estate to Perialis, naming him executor of the estate, and listing Suckow as the sole residuary beneficiary. Decedent subsequently passed away on May 28, 2019. In July 2019, the Middlesex County Surrogate admitted decedent's will to probate and issued Perialis letters testamentary. In September 2019, Perialis filed a verified complaint and order to show cause, seeking to admit decedent's codicil, dated February 24, 2019, to probate. The disputed codicil provided, most significantly, Perialis's family would receive $500,000 from the estate. Additionally, around the same time the codicil was drafted, decedent named Perialis the beneficiary of his life insurance policy, A-3735-24 2 which was worth approximately $38,594.77. Suckow filed a caveat to the codicil in November 2019. 1 Suckow moved for summary judgment, requesting the court deny admission of decedent's codicil "because the document d[id] not manifest [decedent's] final testamentary intent." On July 12, 2021, the court grant ed in part and denied in part the motion. Specifically, the court: denied Suckow's request to reject the admission of decedent's codicil to probate; granted Suckow's request for the court to find a confidential relationship existed between decedent and Perialis, such that there were "additional suspicious circumstances in need of explanation" as to decedent's alleged codicil and the February 2019 beneficiary designations on decedent's life insurance policies; but denied Suckow's request regarding the 2016 beneficiary designations on decedent's IRAs. Furthermore, the court ordered Perialis would "bear the burden of proof to show by a preponderance of the evidence . . . [d]ecedent's alleged codicil and . . . February 2019 changes to the beneficiary designations o[n] his life insurance policies were not the result of undue influence." A three-day trial was held in July 2021. On August 26, the court issued an order voiding decedent's codicil and the February 2019 changes in the 1 Suckow sought unsuccessfully to remove Perialis as executor on multiple occasions prior to trial. A-3735-24 3 beneficiary designations for decedent's life insurance policies, finding the documents were "the product of undue influence." Suckow subsequently moved to remove Perialis as executor and requested the court to order Perialis to reimburse the estate for commissions, counsel fees, and costs paid on his behalf from the estate. In a November 3, 2021 order, the trial court denied Suckow's requests to: remove Perialis as executor because the estate was almost settled and it would create an unnecessary expense; have Perialis reimburse the estate for commissions and attorneys' fees received by him or paid on his behalf; and have Perialis forfeit the balance of any commissions claimed by him. However, the court granted Suckow's request to compel Perialis to file a formal accounting for his administration of the estate with the Surrogate. The court further ordered the estate to pay attorneys' fees and costs in the amounts of: $56,692.93 to David B. Foltz, of the Buttermore and Foltz firm; $11,847.51 to Joseph J. Triarsi, of the Triarsi firm; $45,091.55 to Richard D. Huxford, 2 of the Triarsi firm; $98,551.87 to Shobhan Fuller, of the Karen Krichoff Saminski firm; and $77,343.75 to Charles C. Berkeley. 3 4 2 Foltz, Triarsi, and Huxford were Perialis's attorneys. 3 Fuller was Suckow's attorney, and Berkeley was hired as co-counsel. A-3735-24 4 In December 2021, Suckow moved for reconsideration of the November 9 order. In an order dated February 15, 2022, the trial court denied Suckow's application. However, it revised the November 9 order to direct the estate to pay attorneys' fees and costs in the amounts of: $88,215.67 to Foltz; and $76,847.51 to Triarsi. In addressing its decision allowing Perialis's attorneys' fees to be paid by the estate, it explained: Rule 4:42-9(a)(3) states, in a probate action[,] if a probate is refused[,] the [c]ourt may make an allowance to be paid out of the estate of the decedent. If the probate is granted and . . . it . . . appear[s] that the contestant had a reasonable cause for contesting the validity of the will or codicil[,] the [c]ourt may make an allowance to the proponent and the contestant to be paid out of the estate. Under this [R]ule, [c]ourts may grant attorney[s'] fees from the estate unless the will dispute is . . . "weak or without merit." In re Prob. of Will & Codicil of Macool, 416 N.J. Super. 298, 313 (App. Div. 2010). Here[,] the [c]ourt found that both parties had reasonable cause for contesting the validity of the February[] 2019 codicil. The well[-]contested matter resulted in a three[-]day trial[] and incurred significant legal fees. The [c]ourt found it appropriate that the ________________________ 4 The November 3 order was later amended by the court on November 9, 2021, to reflect it had "considered the letter[,] dated October 28, 2021[,] [from] counsel for . . . Suckow arguing that . . . Perialis is not entitled to have his attorneys' fees paid from the [e]state funds." A-3735-24 5 legal fees of both [Suckow and Perialis] be paid out of the estate pursuant to Rule 4:42-9(a)(2) and (3). .... The [c]ourt is aware that pursuant to . . . New Jersey case law[,] [c]ourts may consider imposing attorney[s'] fees against adverse parties when the adverse party engages in undue influence, [and,] . . . in Niles,[ 5 ] New Jersey's highest court held that an executor who gained substantial economic benefits from engaging in undue influence[] . . . [is] required to pay the attorney[s'] fees of the party who allegedly established the undue influence. . . . . . . However, after considering the evidence before the [c]ourt and meeting with the parties . . . , the [c]ourt found that all attorney[s'] fees should be paid by the decedent's estate pursuant to Rule 4:42- 9(a)(3) and entered the order dated November 9[], 2021. [The l]itigation involved more than just a claim for undue influence. One of the crucial parts of the trial was whether the decedent truly wrote the alleged February[] 2019 codicil[,] and[,] if so[,] whether it was intended to be a codicil. The [c]ourt found that the decedent wrote the alleged February[] 2019 codicil based on [Perialis's] expert's testimony regarding [the] authenticity of the document and both [Suckow]'s and his girlfriend's testimony that they had seen the decedent . . . draft handwritten codicils on legal pads . . . . 5 In re Niles Tr., 176 N.J. 282 (2003). A-3735-24 6 The [c]ourt also found that the document was intended to serve as a codicil based on the writing itself, and the fact that it was found in the strong box in decedent's home with . . . other documents that were important to decedent, such as the will and the deed to his house. As a result[,] it was reasonable for [Perialis] to have brought the February[] 2019 codicil to the [c]ourt's attention [and] contest[] the matter. After all, the February[] 2019 codicil was drafted by the decedent and intended to be a codicil. Furthermore, the case before the [c]ourt was factually distinguishable from Niles and Landsman,[6] prominent cases regarding counsel fees on successful undue influence claims. The court further explained: [T]he [c]ourt . . . [found] [Perialis's] behavior should [not] result in him either paying for [Suckow]'s attorney[s'] fees or bearing his own attorney[s'] fees[,] as opposed to having the [e]state bear the cost. Despite the [c]ourt finding that the decedent . . . [was] undu[ly] influence[d,] . . . the [c]ourt did not find the decedent to be maliciously deceived or [defrauded]. In fact, [Perialis] had some obligation[] to bring . . . the codicil, considering it was written by the decedent[] and intended to be a codicil. Furthermore, [Perialis] was the named executor under the will. . . . 6 In re Landsman, 319 N.J. Super. 252 (App. Div. 1999). A-3735-24 7 [Perialis's] actions are clearly distinguishable from the elaborat[e] schemes perpetuated by the parties in Niles and Landsman. As a result, [Perialis's] attorney[s'] fees should be paid by the estate. Although Landsman emphasized that Greenwald should bear his own litigation costs[,] as it was that perfidy that brought about litigation, . . . [t]he [c]ourt will not attribute all blame [to Perialis] for this litigation. Landsman, 319 N.J. Super. at 274 . . . . [T]he court found that this was a well- contested matter in which the [c]ourt ultimately ruled in favor of [Suckow]. The [c]ourt declines to apply Niles and Landsman in this situation. [(citations reformatted).] In addition, the court ordered the estate to bear the costs of Perialis's handwriting expert, John Paul Osborn, and his medical expert, Dr. Herschkowitz. In August 2022, Perialis filed a formal accounting with the Surrogate. Thereafter, Perialis filed a complaint to settle the final accounting of the estate. Suckow filed an answer, exceptions, and a counterclaim. On February 8, 2023, the trial court issued an order settling the final accounting and, notably, denying Perialis's requests to: increase the amount of attorneys' fees to the Triarsi firm to $76,847.51; pay additional attorneys' fees in the amount of $45,951.55 to the Triarsi firm, "as the fees exceed the agreed A-3735-24 8 amount to represent the [e]state;" issue his executor's commission; and to pay Dr. Herschkowitz. Perialis subsequently moved for reconsideration of the February 8 order. The court heard oral argument in March 2023, after which it issued an oral decision denying Perialis's motion. It explained: [A]t the end of this litigation, . . . the [c]ourt saw the full picture . . . and realized that there was quite a bit of waste and damage to the estate as a result of . . . Perialis'[s] behavior. The . . . undue influence . . . was very significant and . . . triggered the whole litigation, and . . . another thing that this [c]ourt found very troubling was . . . the misrepresentation on the part of . . . Perialis to the [S]urrogate's [O]ffice. . . . Perialis'[s] behavior generated really costly waste to the estate, and . . . . that type of behavior the [c]ourt cannot condone, and does[ not] condone. . . . I haven't heard . . . any new information or anything that . . . would change my . . . findings. . . . So, the [c]ourt . . . reinforces . . . its previous order, and that's the [c]ourt's decision. On April 13, 2023, the court issued an order memorializing its oral decision. Suckow subsequently filed a notice of appeal as to the court's orders dated November 3 and 9, 2021, February 15, 2022, and February 8, 2023. Perialis cross-appealed from the court's February 8 and April 13, 2023 orders. A-3735-24 9 We vacated the orders on appeal and remanded the matter for further proceedings. In re Est. of Yorkowitz, No. A-2835-22 (Sep. 4, 2024) (slip op. at 15). We noted: We cannot determine the court's rationale for denying reimbursement of the expert fee for Dr. Herschkowitz. The February 8, 2023 order denying his fees did not contain a statement of reasons. The subsequent motion for reconsideration also did not address the reason for denying Dr. Herschkowitz's fee. Moreover, it is not clear why the court granted Perialis's request for fees associated with his handwriting expert Osburn but not for Dr. Herschkowitz. Next, in initially approving Perialis's commission, Foltz's and Triarsi's counsel fees, and reimbursement for Perialis's handwriting and medical experts in its oral opinion in February 2022, the court minimized the significance of its undue influence finding against Perialis at trial. The [trial] court "found . . . both parties had reasonable cause for contesting the validity of the . . . codicil." It further noted the matter was "well[-]contested," and it determined it was "appropriate that the legal fees of both [parties] be paid out of the estate pursuant to Rule 4:42-9(a)[(3)]." In distinguishing Niles and Landsman, the court noted the "[l]itigation involved more than just a claim for undue influence" and also involved the authenticity of the codicil and "whether it was intended to be a codicil." The court also determined "it was reasonable" for Perialis to have brought the codicil to the court's attention. The court found Perialis's conduct did not justify having him pay for Suckow's attorney[s'] fees A-3735-24 10 or bearing his own attorney[s'] fees. Importantly, the court noted, "[d]espite the [c]ourt['s] finding that [decedent was] . . . undu[ly] influence[d,] . . . the [c]ourt did not find [decedent] to be maliciously deceived or [that he was subjected to] fraudulent [conduct]." It noted Perialis's actions were "clearly distinguishable from the [elaborate] schemes [perpetrated] by the parties in Niles and Landsman." However, in addressing Perialis's motion for reconsideration of the court's February 8, 2023 order denying Perialis's commission, certain fees for the Triarsi firm, and the expert fee for Dr. Herschkowitz, the court noted . . . it had an "opportunity to reflect on what actually transpired." The court noted there was "quite a bit of waste and damage to the estate as a result of . . . Perialis'[s] behavior. The . . . undue influence . . . was very significant and . . . actually triggered the whole litigation, and . . . this [c]ourt found very troubling . . . the misrepresentation on the part of . . . Perialis to the [S]urrogate's office." The court further observed Perialis's "behavior generated really costly waste to the estate," and it could not find he was entitled to his commission based on the undue influence finding and his misrepresentation. The oral opinion did not discuss the Triarsi firm, but the order noted the firm's additional counsel fees were denied[,] "as the fees exceed[ed] the agreed amount to represent the [e]state." [Id. at 12-14.] We further observed: "When a trial court makes mutually contradictory findings of fact, it creates doubt in appellate disposition as to the applicable finding thus requiring reversal when the contradictory findings are A-3735-24 11 implicated in the trial court's ultimate disposition of the matter." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2024) (citing State in the Int. of D.M., 238 N.J. 2, 22 (2019)). Here, the court did not adequately set forth a basis for its ruling. We cannot reconcile the court's February 2022 findings with its March 2023 findings. We are therefore constrained to remand for the court to provide a proper statement of reasons pursuant to Rule 1:7-4 for the various orders on appeal in this matter. [Id. at 14-15.] In accordance with our decision, the trial court revisited these issues and rendered a written statement of reasons on March 10, 2025. It stated it was satisfied Osborn's handwriting expert conclusions were "sound," explaining: 1. He relied on an appropriate array of known handwriting samples; 2. No opposing handwriting expert was called by . . . Suckow to rebut . . . Osborn's conclusions; and 3. . . . Osborn relied on an appropriate standard generally accepted within his profession, that being the analysis of questioned documents. The court further held, "That the [c]ourt later disallowed the admission of the [c]odicil to probate ha[d] very little to do with whether the decedent's estate should be responsible to pay . . . Osborn." It explained, "As noted previously, the [c]ourt also found that the [c]odicil was executed with A-3735-24 12 testamentary intent. This [c]ourt reaffirms its decision that the estate should bear the expense of . . . Osborn's testimony." The court reaffirmed its decision denying the application for decedent's estate to bear the costs for Dr. Herschkowitz, essentially finding his testimony was unnecessary. It noted: The [c]ourt's Statement of Reasons for the entry of its February 2023 [o]rder cites no testimony offered by Dr. Herschkowitz. Its only reference to decedent's psychological condition is found on page [three] of that statement[:] "[d]ecedent was also weakened due to his cancer treatment and suffered from depression and other medical conditions[."] The [c]ourt did not need expert testimony to conclude that someone suffering from cancer and undergoing cancer treatment[] might be depressed. It concluded that decedent intended the [c]odicil as a holographic [c]odicil to his [w]ill[] based on the content of the [c]odicil [and] on the testimony of . . . Osborn that the [c]odicil appeared to be a redraft of an earlier document[] and [the fact] that the [c]odicil was executed at a time when decedent was undergoing chemotherapy. To this [c]ourt, the difference between the relevance of the testimony of . . . Osborn . . . and Dr. Herschkowitz . . . is clear . . . . The trial court also sought to "reconcile" its earlier decisions, noting it initially found "the most equitable resolution of the matter would be to have the . . . estate pay for all the legal fees incurred in the litigation." It did not A-3735-24 13 consider the undue influence exercised by Perialis to be analogous to the undue influence in Niles, which it noted "involved someone essentially a stranger to decedent becoming appointed as trustee" of the estate and "looting it over an extended period, a scenario substantially different from this case." It noted "both sides here had reasonable cause to contest the validity of the . . . [c]odicil," it was rational for Perialis to bring the codicil to the court's attention, and that Perialis did not "maliciously deceive or defraud decedent." However, the court noted it later modified its view and believed the decision for the estate to bear all the "litigation costs for both parties was incorrect." It explained: Although [the court] felt that there may be varying degrees of undue influence from one case to another, [the court] was persuaded that undue influence is still undue. This is what [the court had] tried to effectuate with the later [o]rders. Recognizing that the earlier decision was interlocutory and was exercised before the entry of judgment, [the court] chose to modify [its] earlier position to reflect the view apparent from the April 2023 [o]rder. This is why the transcript of oral argument [from] March 24, 2023 reflected [the court's] consideration of the "waste and damage to the estate" caused by . . . Perialis'[s] actions, as well as the high degree of significance of the influence of . . . Perialis and the troubling nature of . . . Perialis'[s] representations to the Office of the Surrogate, among other things. A-3735-24 14 On June 10, 2025 the court "reaffirmed" the orders entered on: November 3 and 9, 2021; February 15, 2022; February 8, 2023; and April 13, 2023.7 These appeals ensued. II. Suckow argues "[a]t the very least," Perialis should be held responsible for the payment of his own counsel fees incurred from the litigation over the codicil. Additionally, he claims the trial court erred by declining to direct Perialis to reimburse the estate for all counsel fees incurred because: (1) "Perialis chose to litigate the validity of the codicil that substantially benefited himself and his family members while serving as executor"; and (2) "the court ultimately found that the codicil was the result of undue influence exerted by . . . Perialis himself." In his cross-appeal, Perialis asserts we should affirm those portions of the orders challenged by Suckow and contends the court exercised reasonable discretion in ordering the parties' legal fees and costs to be paid by the estate. However, he contests those portions of the trial court's orders denying his 7 The trial judge wrote the March 2025 statement of reasons, whereas a different judge entered the June 2025 order. A-3735-24 15 executor commission, reducing the fees payable to the Triarsi firm, and denying payment of Dr. Herschkowitz's fee. "Whether a court rule permits an award of counsel fees is a matter of legal interpretation." In re Guardianship of DiNoia, 464 N.J. Super. 562 , 566 (App. Div. 2019). "Accordingly, we review de novo the determination of whether counsel fees are permissible." Ibid. But, "[s]o long as a trial judge's decision is authorized by law, we will not overturn a decision to award or withhold counsel fees, absent 'a clear abuse of discretion.'" Id. at 566-67 (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). Similarly, the allowance of an executor's commissions under N.J.S.A. 3B:18 - 13 and -14 is a discretionary determination. See In Est. of Moore, 50 N.J. 131, 149 (1967). "A trial court decision will constitute an abuse of discretion where 'the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Saffos v. Avaya, Inc., 419 N.J. Super. 244, 271 (App. Div. 2011) (alteration in original) (quoting United States v. Scurry, 193 N.J. 492, 504 (2008)). A reviewing court "will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Slutsky A-3735-24 16 v. Slutsky, 451 N.J. Super. 332, 365 (App. Div. 2017) (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). A. Suckow argues Perialis should be held responsible for the payment of all counsel fees incurred by the parties in connection with the litigation over the codicil. As to this point, he relies on Niles, which he maintains "created a[] new exception to the American Rule that generally forbids fee-shifting." He argues, under Niles, "[w]hen an executor . . . commits the pernicious tort of undue influence, an exception to the American Rule is created that permits the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate," specifically in cases in which "an executor's . . . influence results in the development or modification of estate documents that create or expand the fiduciary's beneficial interest in the estate." Suckow further contends: the trial court determined the codicil was the result of undue influence exerted by Perialis, who was serving as the executor for the estate; the codicil potentially expanded Perialis's beneficial interest in the estate "well beyond what he [would have] received under the [w]ill"; and had the codicil been admitted to probate, Perialis and his family would have A-3735-24 17 received $500,000 cash. Suckow maintains, "[t]he facts of the instant case fit squarely within the guidelines set forth" in Landsman and Niles, and accordingly, he insists Perialis should be held responsible for the payment of $317,502.84—representing Perialis's own counsel fees as well as the legal fees incurred by the other parties—and should forfeit his commission. We conclude the court did not err under Niles in declining to assess Perialis with Suckow's fees. Moreover, we determine the court did not misapply its discretion under Rule 4:42-9(a)(3) in allowing Perialis's legal fees to be paid by the estate. Rule 4:42-9(a)(3) states, in pertinent part: In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. 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. "New Jersey is an 'American Rule' jurisdiction, meaning we have a 'strong public policy against shifting counsel fees from one party to another.'" In re Est. of Folcher, 224 N.J. 496, 506-07 (2016) (quoting In re Est. of Stockdale, 196 N.J. 275, 307 (2008)). "The American Rule prohibits recovery of attorneys' fees 'by the prevailing party against the losing party.'" Id. at 507 A-3735-24 18 (quoting Stockdale, 196 N.J. at 307 ). "[T]he purposes behind the American Rule are threefold: (1) unrestricted access to the courts for all persons; (2) ensuring equity by not penalizing persons for exercising their right to litigate a dispute, even if they should lose; and (3) administrative convenience." In re Est. of Vayda, 184 N.J. 115, 120 (2005) (quoting Niles, 176 N.J. at 294 ). Our Court Rules identify few authorized exceptions. Ibid. Rule 4:42- 9(a), for example, provides, "[n]o fee for legal services shall be allowed in the taxed cost or otherwise, except in certain special circumstances enumerated in the Rules themselves or when such fees specifically are authorized by statute."8 Niles, 176 N.J. at 293 (alteration in original) (quoting R. 4:42-9(a)) (internal quotation marks omitted). Regarding probate actions, Rule 4:42- 9(a)(3) states, "if probate is refused, the court may make an allowance to be paid out of the estate of the decedent." (Emphasis added). Our Court has interpreted Rule 4:42-9 as "codif[ying] those specific instances where, in the 8 Such circumstances, include: in family actions when permitted under Rule 5:3-5(c); an award out of a fund in court; certain probate actions; mortgage foreclosure actions; tax sale certificate foreclosure actions; actions upon a liability or indemnity insurance policy; when expressly provided by court rules with respect to any action; and in "all cases where attorney[s'] fees are permitted by statute." Gannett Satellite Info. Network, LLC v. Twp. of Neptune, 254 N.J. 242 , 259 (2023). A-3735-24 19 absence of a separately enabling statute or contract, fee shifting is permitted." Vayda, 184 N.J. at 120 . However, "[i]n . . . recent years, a few Court-sanctioned 'exceptions to the American Rule that are not otherwise reflected in the text of Rule 4:42-9' and that are not provided for via statute, court rule, or contract have developed." Folcher, 224 N.J. at 507 (quoting Vayda, 184 N.J. at 121 ). These exceptions involve fiduciary breaches in certain settings, such as "when an executor . . . commits the pernicious tort of undue influence." Id. at 508 (quoting Niles, 176 N.J. at 298 ). In such a case, "an exception to the American Rule is created that permits the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate." Ibid. (quoting Niles, 176 N.J. at 298-99 ). This exception "is based on the fiduciary's intentional misconduct" and applies "regardless of [their] professional status." Niles, 176 N.J. at 300 . Our Supreme Court first carved out this narrow exception in Niles. See id. at 286 . There, a mother and her adult son, Serena and Salvatore Bono, working as a team, unduly influenced an eighty-eight-year-old, single multi- millionairess suffering from dementia, Laura, to appoint Salvatore as executor of her estate and modify three inter vivos trust agreements to name Salvatore A-3735-24 20 as trustee and to confer onto the Bonos substantial economic benefits under the altered trust agreements. Ibid. Notably, Laura's assets were in excess of $17.5 million. Id. at 287 . The Court chronicled the mother-son duo: embarked on a sixteen-month looting spree of Laura's estate. . . . [They] used Laura's trust accounts, checkbook, signature stamp, cash, and credit cards for their profligate spending habits. Those expenditures included a $75,000 Mercedes Benz sedan; a $20,000 Cartier watch that was ostensibly a Christmas gift from Laura to [Laura's brother] (who was so ill that he died two days later . . . ); and thousands of dollars at various department stores, specialty shops, and boutiques. [Id. at 289.] In addition, Serena pressured Laura into giving her Laura's $700,000 interest in a condominium. Ibid. The Court also noted there were "changes in Laura's will and trust agreements heavily favor[ing] the Bono family," including: $125,000 to each of [Salvatore's] four children to be held in trust for them with [Salvatore] as trustee; Laura's [New Jersey] home and a trust in the amount of $800,000 for . . . Laura's household staff; and a reduction from $500,000 each to $100,000 each in a bequest to the two children of Laura's beloved goddaughter. [Ibid.] The Court ultimately held "[Salvatore] and Serena must pay the counsel fees of the [plaintiffs] and the third parties to make the estate whole." Id. at A-3735-24 21 300. That is because, "[o]therwise, the estate, an innocent party, w[ould] suffer damages as a result of the undue influence perpetrated by [Salvatore] and Serena." Ibid. Here, although the court determined Perialis unduly influenced decedent in the drafting of the February 2019 codicil, it did not err in finding his conduct did not arise to level of the conduct addressed in Niles. It differentiated the facts in this matter from Niles, where the individuals "embarked on a sixteen-month looting spree of [the decedent's] estate" and significantly depleted the assets of the decedent's $17.5 million estate. See id. at 289 . The court underscored that despite finding there was undue influence, it did not find decedent was "maliciously deceived" or defrauded and found the facts "clearly distinguishable from the elaborate[e] schemes perpetrated by the parties in Niles and Landsman," and that it was reasonable for Perialis to bring the codicil to the court's attention. Thus, we conclude the court did not misapply its discretion in finding Perialis was not responsible to pay Suckow's fees. We likewise determine the court exercised reasonable discretion in permitting certain litigation fees, though not all, to be paid from the estate under Rule 4:42-9(a)(3). Again, the court distinguished Perialis's conduct A-3735-24 22 from that in Landsman and Niles. The court noted the defendant in Landsman "engag[ed] in a pattern and practice of praying upon elderly members of their family based on their age, infirmity[,] and helplessness," which was not present in this case. (quoting Landsman, 319 N.J. Super at 261). It also noted plaintiff was obligated to bring the codicil to the Surrogate's attention. Moreover, it found the codicil was written by decedent with testamentary intent despite ultimately finding it was the product of undue influence. Therefore, the court provided an adequate basis for its decision and did not misuse its discretion in allowing the fees to be paid by the estate, and we discern no reason to disturb the court's findings. B. Perialis, in turn, asserts the trial court erred in ruling he is not entitled to an executor's commission because that conclusion was "inconsistent" with its prior "undisturbed findings." He avers "an executor has the statutory right to commissions payable from estate assets," and a court may only deny the executor those commissions under certain circumstances, none of which are present in this case. Perialis contends the trial court did not provide a statement of reasons when it denied him the executor's commission and merely stated in its A-3735-24 23 February 8, 2023 order his misrepresentation to the Surrogate's Office "created additional expenses to the estate." However, he argues the court's March 24, 2023 decision acknowledged there was "always going to be a fight over the [c]odicil," whether it was submitted with the will or not. He also states the court previously "found it reasonable" he brought the codicil to the attention of the Surrogate and "that he had an obligation to do so." In other words, Perialis insists, "[i]t is incongruent . . . to say that [he] had an obligation to bring the [c]odicil to the [S]urrogate but . . . [to] penalize[ him] for doing so." Next, Perialis claims the court's explanation "did not elaborate" on his alleged misrepresentation to the Surrogate. He states his delay in bringing the codicil to the Surrogate "was done . . . upon the advice of counsel," which he claims "the court expressly acknowledge[d]" in its March 24, 2023 oral decision. He contends the trial court "did not reconcile its claim that the undue influence was significant[] with its earlier findings that [his] conduct did not rise to the level of conduct demonstrated in Niles or Landsman." Perialis argues, "[t]here is no explanation" for why the trial court denied payment of Dr. Herschkowitz's fees, and the denial contradicts the court's order awarding fees for Osborne. He also argues the trial court did not provide an explanation for why it disallowed fees for the Triarsi firm, "other than the A-3735-24 24 statement in the [February 8, 2023] order that 'the fees exceed the agreed amount to represent the [e]state.'" Perialis also asserts the trial court's March 10, 2025 statement of reasons "does not offer a sound rationale" for treating his commission, certain fees to the Triarsi firm, and the fees for Dr. Herschkowitz differently. He argues the trial judge issued four decisions, "each time rejecting the outcome sought by Suckow," but then "partially reversed course" without explaining why. He insists even after the March 10, 2025 statement of reasons, "it [wa]s hard to discern what changed" the judge's mind. He further claims the trial judge, in disallowing his commission and the fees to the Triarsi firm, was "attempting to fashion a last[-]minute form of rough justice by shifting approximately $100,000[] of expenses between the parties." Perialis acknowledges "perfect consistency is sometimes unattainable" in a court's decision. He maintains in the event this court does not accept the court's March 10, 2025 statement of reasons, we should "exercise [our] original jurisdiction" under Rule 2:10-5 to restore the November 3 and 9, 2021 orders and the February 15, 2022 oral decision. We conclude the court did not err in denying Perialis's executor commission, the additional fees to the Triarsi firm, and payment of Dr. A-3735-24 25 Herschkowitz's fees. We affirm substantially for the reasons set forth by the trial court in its March 10, 2025 statement of reasons. We add the following comments. Our Supreme Court has held "[a]n executor is generally entitled to a commission based on the value of the estate[,] but if an executor engages in misconduct, [their] commission may be surcharged, and [their] monies offset by the loss [they] caused the estate." Folcher, 224 N.J. at 510 ; see also Landsman, 319 N.J. Super. at 275 . For example, in Landsman, Greenwald unduly influenced Landsman in the drafting of two wills, and accordingly, we found he was not entitled to his executor commission and ordered him to return any commissions received, reasoning that "to permit commissions under the . . . will would permit Greenwald to benefit from his wrongdoing and offend notions of justice." 319 N.J. Super. at 276 . In accordance with our decision remanding this matter, the trial court issued a statement of reasons, reconciling its previous rulings. It noted it had not relied on the testimony offered by Dr. Herschkowitz. The court observed Perialis retained Dr. Herschkowitz to testify as to decedent's psychological condition, but the only reference the court made to decedent's psychological condition was the following: "Decedent was . . . weakened due to his cancer A-3735-24 26 treatment and suffered from depression and other medical conditions." The court explained it "did not need expert testimony to conclude that someone suffering from cancer and undergoing cancer treatment[] might be depressed." It further observed why, on the other hand, it allowed the fees for Osborn, stating it "concluded that decedent intended the [c]odicil as a holographic [c]odicil to his [w]ill, based on the content of the [c]odicil [and] on the testimony of . . . Osborn." The court further explained why it disallowed plaintiff's commission and the additional fees for the Triarsi firm. It explained, although there "may be varying degrees of undue influence," "undue influence is still undue." It observed that is what it "tried to effectuate" in its April 13, 2023 order which "reflected" the court's "consideration of the waste and damage" that warranted a modification of its prior orders. The court confirmed it intended to revise certain portions of its prior decisions while keeping in place other aspects of its orders. We are satisfied the court harmonized its prior decisions and exercised reasonable discretion in modifying its prior orders. We perceive no basis to disturb the court's findings. A-3735-24 27 To the extent we have not specifically addressed any remaining arguments raised by the parties, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-3735-24 28