                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                        In the Matter of the Estate of Adrian J. Folcher (A-3-14) (074590)

Argued November 9, 2015 -- Decided April 26, 2016

LaVECCHIA, J., writing for a majority of the Court.

         The issue in this appeal is whether the Court should expand the narrow exception to the American Rule
created in In re Niles Trust, 176 N.J. 282 (2003), allowing attorneys’ fees to be assessed against an executor or a
trustee who “commits the pernicious tort of undue influence,” to a person who does not owe a fiduciary
responsibility to an estate or its beneficiaries.

         Adrian Folcher married petitioner Bernice Tambascia-Folcher in 2002. Each had children from a prior
marriage. A post-marital agreement between Folcher and Bernice provided that their incomes would remain
separate, that they would share expenses associated with Bernice’s Cherry Hill home, where they lived since
approximately 1992, and that any real estate they owned jointly would be held in trust for the benefit of the
surviving spouse until his or her death. Folcher executed a will in November 2003 (November 2003 Will) naming
Mary Lee, his daughter, as executor. In addition, Folcher and Bernice wrote a letter to Folcher’s attorney expressing
their wishes about distribution of personal property; specifically, Folcher’s boat, pickup truck, and car were to be
bequeathed to his children. In January 2006, Folcher had his attorney revise his will (January 2006 Will). Mary Lee
remained the executor, but the revised will directed that property not distributed by an attached memorandum, which
specifically bequeathed certain items of personal property including the earlier mentioned boat and motor vehicles,
would pass to Bernice. In March 2007, Folcher had his attorney draft a deed for Bernice’s Cherry Hill home in
which Bernice transferred the home to him and Bernice as “tenants in common” (March 2007 Deed). Thus, upon
his death, Folcher’s one-half interest in the home would pass to his estate, not to Bernice.

          In mid-September 2007, suffering from metastasized kidney cancer, Folcher was temporarily hospitalized.
He was discharged to return home on September 22, 2007, knowing that further treatment, other than hospice care,
was of no use. He was prescribed a combination of potent pain medications, was wheelchair-confined, needed
oxygen support, and generally relied on Bernice for his basic daily care. On September 28, Folcher purportedly
executed two codicils to his January 2006 Will. Codicil #1 stated, “I affirm my last will and testament dated
January 19, 2006, to be my wishes. I want my wife Bernice [Tambascia-]Folcher to have all personal property and
all items in our home.” Codicil #2 was a copy of Codicil #1 with the above whited-out and replaced by the
following handwritten statement: “I want my spouse Bernice Tambascia[-Folcher], to have all personal
accts./property [and] all items in our home.” Bernice testified that she prepared Codicil #2 after Folcher rejected the
first as not properly expressing his wishes.

         On September 29, Bernice and her daughter, Desiree, drove Folcher to a local branch of Wachovia Bank.
According to Bernice, Mileva Boncic, a bank employee, who also was a notary, exited the bank building, went to
Folcher, and notarized documents that Folcher signed in the car. Desiree testified that the witnesses to the signing
watched through the bank’s window and that the witnesses’ signatures were affixed when the document, purportedly
a new deed to the Cherry Hill home (September 2007 Deed) was taken inside the bank. The new Deed made
Folcher and Bernice owners as “joint tenants with the right of survivorship,” instead of “tenants in common” as the
March 2007 Deed provided. Codicils #1 and #2 each contained a purported notarization by Ms. Boncic, who also
notarized the September 2007 Deed, and a purported witness attestation by Anthony Mannello, another bank
employee. At trial, Boncic and Mannello testified that they had not witnessed the signing of the codicils.

          Folcher passed away on October 2, 2007. Approximately forty-five minutes after his death, Bernice went
to the Camden County Clerk’s Office to record the September 2007 Deed. Additionally, on the day of his passing,
and very shortly thereafter, Bernice withdrew a total of $25,886.41 from Folcher’s bank accounts. Further, between
September 26 and 28, 2007, inter vivos transfers of the titles to his vehicles and boat were accomplished. On
October 15, 2007, Mary Lee submitted the November 2003 Will to the Camden County Surrogate for probate. That
same day, Bernice gave the Estate’s attorney, Edward Sheehan (Sheehan), several documents, including a copy of
the November 2003 Will and Codicil #1, but failed to include Codicil #2 or the letter memorandum bequeathing
certain items of personal property. Over a year after Folcher’s death, on October 23, 2008, Bernice submitted
Codicil #2 to the Camden County Surrogate for probate and then mailed a copy to Sheehan, who testified that he
believed Codicil #2 to be fraudulent.
          Litigation commenced after Mary Lee filed a final accounting of the Estate. On November 5, 2012, the
Chancery Court determined that the codicils and the September 2007 Deed executed by Folcher were the product of
undue influence by Bernice and that she had engaged in fraud and forgery. The court voided the September 2007
Deed and both codicils, and Bernice was ordered to reimburse the Estate for the money taken from the accounts and
for the value of the two vehicles and the boat that she had previously sold. On December 10, 2012, the trial court
awarded $397,309.19 in attorneys’ fees to the Estate, citing Niles, supra, 176 N.J. 282, and In re Estate of Stockdale,
196 N.J. 275 (2008). The trial court acknowledged that Bernice was neither an executor nor a trustee of the Estate.
Yet the court determined that an award of counsel fees could be founded on Bernice’s confidential relationship with
Folcher and proof of undue influence.

          Bernice appealed, and the Appellate Division affirmed the fee award. Although Bernice was not a
fiduciary, the panel reasoned that she was in a confidential relationship with Folcher and exercised undue influence
to modify estate documents, obtain property through lifetime transfers, and generally expand her own beneficial
interests. The panel saw “no just reason why she, like a corrupt fiduciary, should not make the estate whole.”

         The Supreme Court granted certification primarily to address the novel use of fee-shifting in this probate
matter. 219 N.J. 630 (2014).

HELD: The Court declines to expand the exception to the American Rule created in In re Niles Trust, 176 N.J. 282
(2003), to a person who does not owe a fiduciary responsibility to an estate and its beneficiaries. In this case,
because the confidential relationship endowed Bernice with an obligation to only her husband, and not the Estate, a
fee award was not the proper vehicle to do equity.

1. New Jersey is an “American Rule” jurisdiction, meaning it has a “strong public policy against shifting counsel
fees from one party to another.” Stockdale, supra, 196 N.J. at 307. The American Rule prohibits recovery of
attorneys’ fees “by the prevailing party against the losing party.” Ibid. (quoting Niles, supra, 176 N.J. at 294).
There are few authorized exceptions. R. 4:42-9. In relatively 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. In re Estate of Vayda, 184 N.J. 115, 121 (2005). Saffer v.
Willoughby, 143 N.J. 256, 272 (1996), recognized an exception to the American Rule in the context of successful
claims for attorney malpractice. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443 (2001), expanded that
exception in the attorney-client-relationship setting to include claims against attorneys who intentionally violate
their fiduciary duties. Most recently, this Court expanded that exception outside of the attorney-client setting to
attorneys acting in a fiduciary capacity as escrow agents. See Innes v. Marzano-Lesnevich, ___ N.J. ___ (2015). In
Niles, the Court created an exception to the American Rule in trustee or executor undue influence cases “based on
the fiduciary’s intentional misconduct regardless of his or her professional status.” 176 N.J. at 300. In Vayda, the
Court declined to extend the exception created in Niles to a non-attorney executor of an estate found to have acted
negligently and with bad faith in his administration of the estate, but who was not found to have committed undue
influence. 184 N.J. at 124. In Stockdale, the Court reaffirmed, albeit in dicta, the narrowness of the Niles fee-
shifting exception to the American Rule. 196 N.J. at 307. (pp. 13-20)

2. Those who hold the legal title of executor or trustee plainly owe a fiduciary duty to the beneficiaries of the estate
or the trust respectively. But there is no dispute on this record that Bernice was not Folcher’s executor and that she
did not owe a formal fiduciary duty to the Estate or to its beneficiaries. Bernice was in a confidential relationship
with only her husband. The burden of establishing undue influence rests with the party contesting the will.
However, “[w]hen there is a confidential relationship coupled with suspicious circumstances, undue influence is
presumed and the burden of proof shifts to the will proponent to overcome the presumption.” Stockdale, supra, 196
N.J. at 303. Bernice’s confidential relationship with Folcher did not encumber her with any special duty toward the
Estate’s beneficiaries. In addition, Bernice was a beneficiary herself. Untethered from a duty to the beneficiaries, a
fee award in this undue influence setting would be based exclusively on the egregiousness of the undue influence
conduct. That is an unwarranted expansion of Niles, which created only a narrow exception to the American Rule.
The trial court mistakenly thought that fee-shifting was available under Niles and used fee-shifting, in lieu of other
claims and remedies, to achieve equitable relief for the Estate in this matter. The Court remands the matter to the
trial court to vacate the attorney fee award and to reconsider the interwoven relief that the court has available to it to
fashion a truly equitable remedy for the circumstances here. (pp. 20-26)

          The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the trial court for further proceedings consistent with the Court’s opinion.



                                                            2
         JUSTICE ALBIN, DISSENTING, would uphold the probate court’s equitable order requiring Bernice to
reimburse the reasonable attorney’s fees expended by the Folcher estate in protecting the Folcher children’s
inheritance from her fraud.

         CHIEF JUSTICE RABNER, JUSTICES PATTERSON and SOLOMON, and JUDGE CUFF
(temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion. JUSTICE FERNANDEZ-VINA did not participate.




                                                     3
                                        SUPREME COURT OF NEW JERSEY
                                           A-3 September Term 2014
                                                   074590

IN THE MATTER OF THE ESTATE
OF ADRIAN J. FOLCHER (a/k/a
ADRIAN J. FOLCHER, JR.),
DECEASED.



         Argued November 9, 2015 – Decided April 26, 2016

         On certification to the Superior Court,
         Appellate Division.

         J. Philip Kirchner argued the cause for
         appellant Bernice Tambascia-Folcher
         (Flaster/Greenberg, attorneys).

         George J. Singley argued the cause for
         respondent Estate of Adrian Folcher (Singley
         & Gindele, attorneys).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    In In re Niles Trust, 176 N.J. 282, 298-99 (2003), this

Court created a narrow exception to the American Rule and

allowed attorneys’ fees to be assessed against an executor or a

trustee who “commits the pernicious tort of undue influence.”

    This appeal centers on challenges to several documents and

disbursements that were purportedly executed by Adrian Folcher

in the closing days of his life.    Petitioner Bernice Tambascia-

Folcher, Folcher’s wife and a beneficiary in a “confidential

relationship” with her aged and vulnerable husband, used that

relationship to commit a pattern of fraud, forgery, and undue

                                1
influence near the end of his life.   After the conclusion of a

lengthy estate contest, the trial court invoked that

relationship, coupled with its finding of undue influence, to

shift the Estate’s counsel fees to Bernice.

     We, however, decline to expand the Niles exception to a

person who does not owe a fiduciary responsibility to the Estate

and its beneficiaries, no matter how repugnant the conduct.

Because that confidential relationship endowed Bernice with an

obligation to only her husband, and not the Estate, a fee award

was not the proper vehicle to do equity.   The trial court had

other, unused means at its disposal for that.   We remand to the

trial court to vacate the fee award and to allow the court to

consider other equitable relief that was foregone because fee-

shifting mistakenly became an integral part of the court’s

equitable remedy.

                              I.

     This case focuses on a series of acts taken by petitioner

that expanded her beneficial interest in her husband Adrian

Folcher’s estate.   Our summary of those events reflects the

facts as found by the trial court, except where direct reference

otherwise is made to the record.1




1 In setting forth the relevant background information from this
highly contested, drawn-out estate dispute between Folcher’s
children and petitioner, we refer to family members and
                                2
    Folcher and his first wife had three children:      Mary Lee,

Thomas, and Patricia.   Following the death of his first wife in

mid-2002, Folcher married Bernice that same year.    Folcher and

Bernice had been living together in her Cherry Hill home since

approximately 1992, although Folcher remained married in name to

his first wife.   Bernice had two children from a prior marriage.

    A post-marital agreement between Folcher and Bernice

provided that their incomes would remain separate, that they

would share expenses associated with Bernice’s Cherry Hill home,

and that any real estate they owned jointly would be held in

trust for the benefit of the surviving spouse until his or her

death.

    With the assistance of his attorney, Folcher executed a

will in November 2003, (November 2003 Will), naming Mary Lee

executor.   In conjunction with that will’s execution, Folcher

and Bernice wrote a letter to the attorney expressing their

wishes about distribution of personal property; specifically,

Folcher’s boat, pickup truck, and car were to be bequeathed to

his children.

    In January 2006, Folcher had his attorney revise his will

(January 2006 Will).    Mary Lee remained the executor, but

Folcher’s revised will directed that any property not



petitioner by their first names to simplify our recitation.    We
intend no disrespect.
                                 3
distributed by an attached memorandum, which specifically

bequeathed certain items of personal property including the

earlier mentioned boat and motor vehicles, would pass to

Bernice.

     In March 2007, Folcher had his attorney draft a deed for

Bernice’s Cherry Hill home in which Bernice transferred the home

to him and Bernice as “tenants in common,” and not as “joint

tenants with the right of survivorship” (March 2007 Deed).2

Thus, upon his death, Folcher’s one-half interest in the home

would pass to his estate, not to Bernice.   Folcher believed that

he had materially contributed to the Cherry Hill home while he

resided there and wanted his interest in the home protected for

his children’s benefit.   The deed was executed and recorded in

Camden County on September 7, 2007.   Shortly thereafter,

Folcher’s health rapidly deteriorated.

     In mid-September 2007, suffering from metastasized kidney

cancer, Folcher was temporarily hospitalized.   He was discharged

to return home on September 22, 2007, knowing that further

treatment, other than hospice care, was of no use.   He was


2 Previously, in August 2003, Folcher had his attorney draft a
deed to the Cherry Hill home that would have made Bernice and
him “tenants in common,” but that deed was never signed or
recorded. The trial court determined that proceeds in the
amount of $125,000 (from Folcher’s sale of his former home with
his first wife), which were given to Bernice shortly after the
2003 deed was drafted, were in consideration of his obtaining a
one-half ownership interest in the Cherry Hill home.
                                4
prescribed a combination of potent pain medications whose

administration Bernice controlled and dispensed with enough

randomness that the trial court found it difficult to discern

whether Folcher was under- or over-medicated at times during the

end of his life.    He was wheelchair-confined, needed oxygen

support, suffered from bed sores, and generally relied on

Bernice for his basic daily care.      During the final week of his

life, his sister Rita Coghlan noted that he seemed tired and had

trouble breathing and speaking.     His condition was confirmed by

the testimony of Dr. Mark Testa, whom the trial judge found

credible.

    Based on the testimony of Mary Lee, the trial court found

that on Friday, September 28, Folcher told Mary Lee, by phone,

that Bernice would not allow her to visit, and he further

stated, “I can’t fight [Bernice] anymore.     It’s too late for

that.”    Bernice admitted that she told Folcher’s family not to

visit him on September 29, because she said she wanted private

time with him.    Yet she later told Mary Lee’s husband that he

could bring the grandchildren for a visit during the afternoon

of Saturday, September 29 to watch a baseball game.

    During those two pivotal days –- September 28 and 29, 2007

-- a number of actions were taken in relation to Folcher’s

estate.     On September 28, Folcher purportedly executed two

codicils to his January 2006 Will.      Codicil #1 stated, “I affirm

                                   5
my last will and testament dated January 19, 2006, to be my

wishes.     I want my wife Bernice [Tambascia-]Folcher to have all

personal property and all items in our home.”    Codicil #2 was a

copy of Codicil #1 with the above whited-out and replaced by the

following handwritten statement: “I want my spouse Bernice

Tambascia[-Folcher], to have all personal accts./property [and]

all items in our home.”     According to Bernice’s testimony

explaining the two codicils, Folcher directed the preparation of

Codicil #1 on September 28, and then she prepared Codicil #2 on

the same day after Folcher rejected the first as not properly

expressing his wishes.

    On the morning of September 29, Bernice and her daughter,

Desiree, moved Folcher into a car and drove him to a local

branch of Wachovia Bank in Maple Shade.     According to Bernice,

the following transpired:    Bernice requested that a bank

employee, who also was a notary, exit the bank building, go to

Folcher seated in the car in the bank parking lot, and notarize

documents that Folcher would sign in the car.     Bernice testified

that the employee, Mileva Boncic, came outside and notarized a

document.    Desiree testified that the witnesses to the signing

remained inside the bank and observed Folcher sign the document

while watching through the bank’s window and that the witnesses’

signatures were affixed when the document was taken inside the

bank.     The document that purportedly was notarized in this

                                   6
fashion was a new deed to the Cherry Hill home (September 2007

Deed).

     The trial court found that the September 2007 Deed was

drafted by Bernice using the March 2007 Deed as a template.       The

September 2007 Deed made Folcher and Bernice owners as “joint

tenants with the right of survivorship,” instead of “tenants in

common” as the March 2007 Deed provided.       The seller’s residency

certification was a photocopy of the one that accompanied the

March 2007 Deed; however, the date was changed to September 29,

2007, and Folcher’s name was added as a “seller.”

     As for Codicils #1 and #2 dated September 28, 2007, each

contained a purported notarization by Ms. Boncic, the same bank

employee who notarized the September 2007 Deed.      Each codicil

also contained a purported witness attestation by Anthony

Mannello, another bank employee.       At trial, Boncic and Mannello

testified that they had not witnessed the signing of the

codicils.     Boncic’s notary log referenced only the September

2007 Deed, with no reference to the September 28 codicils.      She

testified that she did not notarize any documents for Folcher on

September 28, 2007 and that she would have remembered going

outside the bank building on two successive days to notarize

documents.3


3 Bernice disputed Boncic’s testimony, pointing to Mannello’s
testimony that his and Boncic’s signatures appeared to be on
                                   7
     Folcher passed away on October 2, 2007.   Approximately

forty-five minutes after his death, Bernice went to the Camden

County Clerk’s Office to record the September 2007 Deed.

Additionally, on the day of his passing, and very shortly

thereafter, Bernice withdrew a total of $25,886.41 from

Folcher’s Sterling Bank account and Morgan Stanley account

funds.   Further, between September 26 and 28, 2007, inter vivos

transfers of the titles to his vehicles and boat were

accomplished.

     Following Folcher’s death, on October 15, 2007, Mary Lee

submitted the November 2003 Will to the Camden County Surrogate

for probate.    That same day, Bernice gave the Estate’s attorney,

Edward Sheehan (Sheehan), several documents, including a copy of

the November 2003 Will4 and Codicil #1, but failed to include

Codicil #2 or the letter memorandum bequeathing certain items of

personal property.    Sheehan testified that he became suspicious

of Codicil #1 because it plainly was not prepared by an



both codicils and that Boncic’s raised notary seal was on both
codicils as well. At trial, alternative possibilities as to how
those documents, in their purported notarized and witnessed
form, could have been manufactured were presented to the court.

4 The trial court’s factual findings state that Bernice initially
also gave Sheehan the January 2006 Will. However, the Appellate
Division decision states that Bernice gave Sheehan the November
2003 Will, and that the January 2006 Will was discovered later
and admitted to probate on judgment. This detail was not
integral to any of the trial court’s findings and it is not
important in the resolution of the issues before us.
                                  8
attorney, contained errors, repeated certain bequests already in

the November 2003 Will, contained interlineations, and failed to

contain “appropriate acknowledgment paragraphs” alongside

Boncic’s signature purportedly notarizing the document.

Accordingly, Sheehan advised Mary Lee not to submit Codicil #1

for probate.    Through a subsequent application to the Superior

Court, a judgment was entered on February 8, 2008, admitting the

January 2006 Will for probate.

    Over a year after Folcher’s death, on October 23, 2008,

Bernice submitted Codicil #2 to the Camden County Surrogate for

probate and then mailed a copy to Sheehan.    Codicil #2 had

Boncic’s signature and notary seal, but like Codicil #1 it also

lacked an “acknowledgment paragraph.”    Sheehan testified that he

believed Codicil #2 to be fraudulent because it was submitted

over a year after Bernice had produced the other documents.

According to Sheehan, besides appearing to be a cut-and-paste of

Codicil #1, Codicil #2 also specifically mentioned “bank

acc[oun]ts” which he believed to have been added after he

informed Bernice that Codicil #1 would not govern bank accounts.

When examined on why she initially gave Sheehan Codicil #1 yet

waited a year to submit Codicil #2, Bernice testified that she

thought they were the same, an explanation the trial court found

not credible.



                                  9
    Litigation commenced after executor Mary Lee filed a final

accounting of the Estate, lasted over five years, and culminated

in a long bench trial in the Chancery Division.   In its oral

decision announced November 5, 2012, the court determined that

the codicils and the September 2007 Deed executed by Folcher

were the product of undue influence by Bernice.   Although not

required, the court emphasized that the proofs for those

findings exceeded the clear-and-convincing evidential standard,

not simply the preponderance-of-the-evidence standard required

for undue influence.   First, the judge found that Folcher and

Bernice were in a “confidential relationship” due to Folcher’s

“vulnerable and fragile condition . . . at the time he allegedly

undertook the transactions at issue.”   The court further found

that “suspicious circumstances” surrounded the execution of the

September 2007 Deed and Codicils #1 and #2, as well as the inter

vivos transfers of title to the motor vehicles and boat.    With

the burden shifted to Bernice to demonstrate that those actions

were not the product of undue influence, the court concluded

that Bernice’s proofs did not overcome that presumption.

Indeed, the court noted that evidence adduced from Folcher’s

sister, once the burden had shifted, further cemented the

evidence of undue influence.

    In addition, on the Estate’s request, the court found that

the making and execution of the September 2007 Deed and Codicils

                                10
#1 and #2, the inter vivos transfers of titles to the motor

vehicles and boat, and the withdrawal of $25,886.41 in total

from Folcher’s financial accounts, amounted to fraud and forgery

by Bernice.   The court voided the September 2007 Deed and both

codicils, and Bernice was ordered to reimburse the Estate for

the money taken from the accounts and for the value of the two

vehicles and the boat that she had previously sold.

    On December 10, 2012, the trial court awarded $397,309.19

in attorneys’ fees (plus costs and expert witness fees) to the

Estate, citing Niles, supra, 176 N.J. 282, and In re Estate of

Stockdale, 196 N.J. 275 (2008).    The trial court acknowledged

that Bernice was neither an executor nor a trustee of the

Estate.   Yet the court determined that an award of counsel fees

could be founded on Bernice’s confidential relationship with

Folcher and proof of undue influence.    Although the Estate

requested punitive damages, and although those damages were not

unsupportable, the trial court declined to award punitive

damages because the court, through its fee award, was already

factoring in the substantial cost to the spousal beneficiary.

    Bernice appealed, and the Appellate Division affirmed the

fee award.    Although Bernice was not a fiduciary, the panel

reasoned that she was in a confidential relationship with

Folcher and exercised undue influence to modify estate

documents, obtain property through lifetime transfers, and

                                  11
generally expand her own beneficial interests.    According to the

panel, her fraud contributed to the erosion of the estate, and

the panel saw “no just reason why she, like a corrupt fiduciary,

should not make the estate whole.”

                                II.

    Bernice argues that the Appellate Division erred in three

respects:   (1) by expanding the narrow Niles exception to the

American Rule against fee-shifting in estate cases beyond its

explicit limits; (2) by declining to address all claims raised

in her supplemental brief, which when distilled, essentially

faulted the trial court’s fraud fact-finding on the basis that

the trial court did not expressly state the standard by which it

reached its finding of fraud; and (3) by misstating several

facts while addressing her factual arguments.    On the last

point, Bernice maintains that the reliability of the Appellate

Division’s review, in its entirety, is undermined by the

asserted lack of attention to details in the record.

    The Estate’s responsive arguments may be summarized as

follows.    It first asserts that the Niles exception allowing

fee-shifting in estate matters is not based solely on the legal

position of the wrongdoer but the nature of the wrongful

behavior.   From that, the Estate argues that fee-shifting was

appropriate here based on Bernice’s egregious conduct.     Second,

the Estate contends that the Appellate Division plainly

                                 12
considered and rejected the arguments raised in Bernice’s

supplemental brief through its discussion and affirmance of the

trial court’s legal reasoning, standards of proofs, and

findings.   The panel was not required to more specifically

address arguments in order to reject them.    Third, Bernice’s

harping on cherry-picked facts in an effort to mire the appeal

in nondispositive factual details that allegedly were misstated

does not provide a basis for overturning the Appellate

Division’s judgment.     The details that Bernice emphasizes do not

reasonably shake confidence in the overall picture of fraud,

forgery, and undue influence painted by this record and found by

the trial court.

    We granted certification primarily to address the novel use

of fee-shifting in this probate matter.    219 N.J. 630 (2014).

We first turn to that issue.

                                III.

    New Jersey is an “American Rule” jurisdiction, meaning we

have a “strong public policy against shifting counsel fees from

one party to another.”    Stockdale, supra, 196 N.J. at 307.     The

American Rule prohibits recovery of attorneys’ fees “by the

prevailing party against the losing party.”    Ibid. (quoting

Niles, supra, 176 N.J. at 294).    Our Court Rules identify few

authorized exceptions.    Rule 4:42-9(a) provides that “[n]o fee

for legal services shall be allowed in the taxed costs or

                                  13
otherwise, except” in eight enumerated circumstances, none of

which pertain to this matter.5    This Court has interpreted Rule

4:42-9 as generally “codif[ying] those specific instances where,

in the absence of a separately enabling statute or contract, fee

shifting is permitted.”     In re Estate of Vayda, 184 N.J. 115,

120 (2005).

       In relatively 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.     Id. at

121.    This category of common law fee-shifting defies any one

ready descriptor but involves fiduciary breaches in certain

settings.     The original two cases involved attorney misconduct

arising out of the attorney-client relationship.     Saffer v.

Willoughby, 143 N.J. 256, 272 (1996), recognized an exception to

the American Rule in the context of successful claims for

attorney malpractice.     Packard-Bamberger & Co. v. Collier, 167

N.J. 427, 443 (2001), expanded that exception in the attorney-

client-relationship setting to include claims against attorneys


5 Specifically, Rule 4:42-9(a) details when an award of
attorneys’ fees is permitted in a family action, out of a fund
in court, in a probate action in certain settings when fees may
be paid out of the estate, in a mortgage foreclosure action, in
a tax certificate foreclosure action, in an action on a
liability or indemnity policy of insurance, as otherwise
expressly provided by court rule in any action, and in all cases
where attorneys’ fees are permitted by statute.
                                  14
who intentionally violate their fiduciary duties.     Most

recently, this Court expanded that exception outside of the

attorney-client setting to attorneys acting in a fiduciary

capacity as escrow agents.   See Innes v. Marzano-Lesnevich, ___

N.J. ___ (2015).6

     More to the point is our prior decision in Niles, on which

the trial court based its fee award in this matter.    We turn

directly to Niles for purposes of our present analysis.

     In Niles, supra, the Court declared that “when an executor

or trustee 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.”   176 N.J. at 298-99.   The Court explained that “[a]

fiduciary relationship exists between a trustee and the trust[,]

similar to the attorney-client relationship,” and that “[b]oth

the attorney and a trustee act as officers of the court when

acting on behalf of clients and beneficiaries.”     Id. at 297.

The Court concluded that non-attorney status should not prevent




6 Although In re Estate of Lash, 169 N.J. 20, 32 (2001), is often
included in discussions of this Court’s case law permitting fee-
shifting, it expressly disavowed connection to the American
Rule. Lash involved an administrator malfeasance claim covered
by a surety bond and the fee issue that arose was whether the
surety was responsible for fees incurred in suing on the bond.
Id. at 24-26.
                                 15
an award of attorneys’ fees in suits against trustees or

executors for undue influence.   Id. at 299.

    Thus, Niles created an exception to the American Rule in

trustee or executor undue influence cases “based on the

fiduciary’s intentional misconduct regardless of his or her

professional status.”   Id. at 300.

    Underscoring the foundational importance of the finding of

undue influence that supported fee-shifting to a fiduciary and

his facilitating cohort in Niles, we declined to extend that

fee-shifting exception in the circumstances presented in Vayda.

There, a non-attorney executor of an estate was found to have

acted negligently and with bad faith in his administration of

the estate, but he was not found to have committed undue

influence.   Vayda, supra, 184 N.J. at 124.    Reaffirming New

Jersey’s “strong public policy against” fee shifting, ibid.

(quoting Niles, supra, 176 N.J. at 293), the Court unanimously

resisted the plea to extend Niles.    The Court pointed out

instead that Rule 4:42-9(a)(3) provides a specific remedy in

probate actions; attorneys’ fees could be paid from the estate.

Ibid.

    Five years later, our decision in Stockdale, supra,

reaffirmed, albeit in dicta, the narrowness of our fee-shifting

exception created in Niles.   196 N.J. at 307 (emphasizing that

Niles was “directed solely to circumstances in which ‘an

                                 16
executor or trustee commits the pernicious tort of undue

influence’” (quoting Niles, supra, 176 N.J. at 298)).      The

circumstances of Stockdale provide guidance in the present

matter.

    Stockdale was a wealthy, elderly, reclusive woman in

declining health, who had planned to leave much of her estate to

a local charity (the first aid squad), when her neighbor

Sollitto insinuated himself into her life.      Id. at 284-86.

Through a series of orchestrated acts, Sollitto with help from

an attorney friend, Casale, had Stockdale deed her home to

Sollitto; amend her will; name Casale the executor of the

estate; make Sollitto the residual beneficiary; and forgive the

purchase-money mortgage she took when Sollitto purchased her

home that covered almost the entirety of the purchase price.

Id. at 290-94.

    The trial court found that the will was unenforceable as

the product of undue influence.    Id. at 297.   The transfer of

Stockdale’s home, including the deed and the contract of sale,

was also found to be unenforceable.    Ibid.    The trial court

reinstated the original will -- the will naming the local

charity as the residual beneficiary.    Ibid.    Relying on Niles,

the trial court granted the charity attorneys’ fees as a form of

punitive damages, reasoning that undue influence is a form of

intentional tort that can sustain a fee award.     Ibid.   According

                                  17
to the trial court, the fee award was a measure of punitive

damages that was necessary to make the estate whole.      Ibid.

    The Appellate Division reversed the fee award and “remanded

for consideration of an award of punitive damages.”     Id. at 298.

The fee award was not supported “under Niles because Stockdale’s

estate was not financially depleted by Casale’s and Sollitto’s

conduct.”   Ibid.

    Sollitto, and not the first aid squad, filed a petition for

certification, arguing that Niles did not authorize a punitive

award.   Id. at 299.    Thus the issue before this Court was not

the reversal of the fee award but rather whether punitive

damages could be a remedy for the undue influence tort in

probate proceedings.

    This Court found that punitive damages were available in

the probate part in the rare case.     Id. at 304.   We noted that,

in the usual undue influence case, “undue influence is not a

separately pleaded tort, but is the analytical framework within

which the decision about whether to admit a will to probate is

made.”   Ibid.   The main issue normally is which will to admit to

probate.    Ibid.   If none of the competing parties has gained

control of the estate, the estate has suffered no loss, and “the

only remedy sought is the admission of a particular will to

probate.”   Ibid.



                                  18
    However, we explained that a tort-based claim for

compensatory damages can be asserted when the estate has

suffered loss, if, for example, one of the parties has depleted

the estate’s assets.     Ibid.   Even then, a compensatory award

will be rare because equitable relief will usually suffice.        Id.

at 304-05.     An executor is generally entitled to a commission

based on the value of the estate; but if an executor engages in

misconduct, his commission may be surcharged, and his monies

offset by the loss he caused the estate.      Id. at 305.    Further,

we explained that the surcharge “does not equate with a

compensatory award.”     Ibid.   When those remedies prove

inadequate, a compensatory award, and in turn a punitive award,

can be justified.     Id. at 309.

    In discussing the availability of punitive damages within a

probate setting, we commented on the scope of Niles and

identified three considerations that were critical to the fee

award there:    (1) that “the claims in Niles were presented by

the substitute executor on behalf of the estate” after the

fiduciary had been ousted; (2) that the tortious acts were the

acts of a fiduciary and had the effect of stripping the estate

of virtually all assets, making the usual equitable remedies

inadequate; and (3) that the wrongdoing fiduciary actors were

“strangers to the natural bounty” of the testator.      Id. at 306.



                                    19
     Although the fee-shifting issue was not before it, the

Court in Stockdale noted “that Niles created a specific and

rather limited exception to the American Rule” and acknowledged

that “the Appellate Division quite correctly concluded that the

[charity] was not entitled to an award of attorneys’ fees.”     Id.

at 312-13.

                               IV.

     Considered collectively, Niles, Vayda, and Stockdale

clearly make an existing fiduciary relationship a prerequisite

to an estate’s recovery of attorneys’ fees in a will contest

involving undue influence.   Since a will contest is the

framework for the matter presently before us, Bernice’s legal

status is critical.

     Those who hold the legal title of executor or trustee

plainly owe a fiduciary duty to the beneficiaries of the estate

or the trust respectively.   But there is no dispute on this

record that Bernice was not Folcher’s executor and that she did

not owe a formal fiduciary duty to the Estate or to its

beneficiaries.7   The trial court found that Bernice was in a

confidential relationship with only her husband.   The term




7 The dissent disregards that key difference between this case
and Niles. See post at __ (slip op. at 8). Niles involved the
trustee to the estate and his mother, who aided and abetted his
conduct. Contrary to the dissent’s assertion, that is a
meaningful difference.
                                20
“confidential relationship” has significance in the proofs

required for a showing of undue influence in a probate setting.

       “[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 following the dictates

of his or her own mind as it relates to the disposition of

assets, generally by means of a will or inter vivos transfer . .

. .”   Stockdale, supra, 196 N.J. at 302-03.      A challenger can

set aside a decedent’s will or inter vivos transfer on the basis

of undue influence.     Id. at 302.    The burden of establishing

undue influence rests with the party contesting the will.       Id.

at 303.     However, “[w]hen there is a confidential relationship

coupled with suspicious circumstances, undue influence is

presumed and the burden of proof shifts to the will proponent to

overcome the presumption.”     Ibid.   That burden can be overcome

based on proof of no undue influence by a preponderance of the

evidence.    Ibid.

       In prior case law, we have acknowledged the difficulty in

precisely defining a confidential relationship; however, it

generally “encompasses all relationships ‘whether legal, natural

or conventional in their origin, in which confidence is

naturally inspired, or, in fact, reasonably exists.’”       Pascale

v. Pascale, 113 N.J. 20, 34 (1988) (quoting In re Estate of

Fulper, 99 N.J. Eq. 293, 314 (Prerog. Ct. 1926)).

                                  21
    There is a split of authority on whether a confidential

relationship rises to the level of a fiduciary relationship.

Some jurisdictions find that the two are essentially one and the

same.   See Foster v. Ross, 804 So.2d 1018, 1023 (Miss. 2002)

(stating that confidential relationship is “fiduciary in

character”); Buxcel v. First Fid. Bank, 601 N.W.2d 593, 597

(S.D. 1999) (“A confidential relationship is generally

synonymous with a fiduciary relationship.” (quoting Crane v.

Centerre Bank of Columbia, 691 S.W.2d 423, 428 (Mo. Ct. App.

1985))).   Others do not.   See Restatement (Third) of Trusts § 2

cmt. b(1) (2003) (“Although the relationship between two persons

is not a fiduciary relationship, it may nevertheless be a

confidential relationship.”).   New Jersey is aligned with the

latter camp in view of the holding in Pascale, supra,

recognizing that a confidential relationship does not quite rise

to the level of a fiduciary relationship.   113 N.J. at 34.

    That said, no definitive parameter need be set around

confidential relationships generally in order to decide this

matter.    The trial court found that a confidential relationship

existed between the married couple, Bernice and her aged and

vulnerable husband, Folcher.    Bernice’s obligation was to

Folcher.   Her confidential relationship with Folcher did not

encumber her with any special duty toward the Estate’s

beneficiaries.   There was no special confidence reposed in

                                 22
Bernice by the other beneficiaries of the Estate.     She was a

beneficiary herself.    That is a critical distinction:   Unlike a

formal fiduciary setting, “the beneficiary will have no claim in

the informal or confidential relationship cases unless she in

fact reposes special confidence.”      Dan B. Dobbs et al., 3 The

Law of Torts § 697 at 753 n.28 (2d ed. 2011).

    The Niles Court focused on the fiduciary relationship that

the trustee or executor owed to the beneficiaries, not the

testator.   That was justification, at least in part, for making

the devastated estate in that matter whole, through the award of

attorneys’ fees, for the pernicious tort of undue influence

committed by the wrongdoing fiduciary.      Here, however, Bernice

owed no duty to the beneficiaries.     Untethered from a duty to

the beneficiaries, a fee award in this undue influence setting

would be based exclusively on the egregiousness of the undue

influence conduct.     That is an unwarranted expansion of Niles,

which created only a narrow exception to the American Rule.         We

honor that and decline to expand it here.      The absence of a

fiduciary relationship, taken with the absence of the Stockdale

factors -- Bernice was not a stranger to the natural bounty of

the testator -- provide the basis for rejecting the fee award in

this appeal.

    The trial court mistakenly thought that fee-shifting was

available under Niles and used fee-shifting, in lieu of other

                                  23
claims and remedies, to achieve equitable relief for the Estate

in this matter.   The transcript reveals that the court was

troubled by the seeming vexatious and prolonged nature of the

litigation, which caused substantial depletion of Estate

resources.   The fee award coincided with the approximate amount

by which this litigation depleted the Estate.    The court had

findings of fraud and undue influence to work with in crafting

an equitable remedy.   There was a claim for punitive damages

that was not unsupported but was not utilized by the court in

view of its other dispositions.     We remand this matter to the

trial court to vacate the attorney fee award and to reconsider

the interwoven relief that the court has available to it to

fashion a truly equitable remedy for the circumstances here.

                               V.

    We summarily reject the remaining arguments advanced by

petitioner in this appeal.   The claim that the trial court’s

finding of fraud is unsupported, based primarily on the court’s

failure to refer to the standard of clear and convincing proof

when making its finding, is undermined by a fair reading of the

court’s decisions in their totality.    The court, as noted,

rendered its finding of undue influence, which was pled as a

separate tort in this matter and was not simply background to

the will contest over which documents to submit to probate,

based on a finding of proof by a clear and convincing standard.

                                  24
The court’s recitation of the testimony, documents, and

reasoning on which it based its determination of events and

conduct by petitioner amply satisfied its findings as to both

undue influence and fraud.   The proofs overlapped and were

sufficient.   The burden shifting that occurs in the undue

influence analysis did not undermine confidence in the

sufficiency of the evidence to support the fraud finding.     We

think the trial court clearly used the correct standard, as did

the Appellate Division in its review.     We affirm the Appellate

Division’s judgment in all respects, except for the attorneys’

fees.8   We add only that the Appellate Division’s use of the Rule

affirmance format should in no way be fairly perceived to be a

failure to consider arguments advanced.     See R. 2:11-3(e)(1)(E).

Petitioner’s expectation of a more explicit explanation for

rejection of her arguments defeats the efficiency purpose to the

Rule.

                               VI.




8 We reject petitioner’s quarrel with discrete facts that she
would like to reargue and similarly her outlandish efforts to
cast certain testimony in a different light or give it greater
weight than that the trial court did. The trial court’s
findings have ample sufficient credible evidence in the record
to support them. Nothing about the Appellate Division decision
undermines the reliability of its judgment or that of the trial
court it was reviewing.


                                25
    The judgment of the Appellate Division is affirmed in part

and reversed in part.   This matter is remanded to the trial

court for further proceedings consistent with this opinion.



     CHIEF JUSTICE RABNER, JUSTICES PATTERSON and SOLOMON, and
JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s
opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
JUSTICE FERNANDEZ-VINA did not participate.




                                26
                                        SUPREME COURT OF NEW JERSEY
                                           A-3 September Term 2014
                                                   074590

IN THE MATTER OF THE ESTATE
OF ADRIAN J. FOLCHER (a/k/a
ADRIAN J. FOLCHER, JR.),
DECEASED.


    JUSTICE ALBIN, dissenting.

    The majority accepts the trial court’s findings that

Bernice Tambascia-Folcher used undue influence to isolate her

infirm and dying husband from the children of his first

marriage.   The majority agrees that, through that undue

influence, Bernice engaged in a pernicious scheme to make

herself the beneficiary of Folcher’s estate, that she forged

codicils to his will to advance that scheme, and that she

committed a fraud on the estate’s heirs.    The majority does not

dispute that Bernice filed a fake codicil with the probate

court, gave false testimony in court, and engaged in fraudulent

and frivolous litigation that depleted nearly all the assets of

the Folcher estate.

    In exercising its equitable powers, the probate court

ordered Bernice to reimburse the Folcher estate for the

attorney’s fees expended in defending against her groundless and

deceitful actions.    The Appellate Division affirmed this

unremarkable decision, relying on In re Niles Trust, 176 N.J.


                                  1
282, 298 (2003).

     The majority, astonishingly, reverses this fair and just

award against the wrongdoer.     The majority claims that the

general rule against fee shifting -- the American Rule --

commands the defeat of equity.     However, the American Rule is

riddled with myriad exceptions based on equity and public

policy.     Those exceptions are found in our statutes, our Court

Rules, and our case law.     Indeed, the probate court’s ruling is

a natural extension of this Court’s fee-shifting decisions,

including Innes v. Marzano-Lesnevich, __ N.J. __ (2016), issued

today.     In light of the egregious behavior of Bernice, including

her corrupt attempts to deny Mr. Folcher’s rightful heirs their

patrimony, it is hard to imagine a more justifiable scenario for

fee shifting.     The majority’s remand for further proceedings on

the issue of punitive damages will needlessly continue

litigation that is sapping the estate’s limited assets.

    I would uphold the probate court’s equitable order

requiring Bernice to reimburse the reasonable attorney’s fees

expended by the Folcher estate in protecting the Folcher

children’s inheritance from her fraud.     I therefore respectfully

dissent.

                                  I.

    The American Rule is not a sacred creed.     Fee-shifting

statutes, court rules, and case law are now a commonplace part

                                   2
of our civil justice system’s efforts to promote equity, deter

wrongful conduct, and encourage lawyers to undertake cases that

further the public interest.

                               A.

    The Legislature has enacted numerous statutes that allow

for fee shifting for the public good.   See, e.g., N.J.S.A.

2A:15-59.1(a) (allowing attorney’s fees for prevailing party in

frivolous actions); N.J.S.A. 2A:18-61.1e (allowing attorney’s

fees for evicted tenant not given proper notice of owner’s

intention to return property to residential use); N.J.S.A.

2A:18-61.6 (allowing attorney’s fees for wrongfully evicted

tenant); N.J.S.A. 2A:23B-25 (allowing attorney’s fees at court’s

discretion to prevailing party in contested arbitration award);

N.J.S.A. 2A:34-25 (allowing attorney’s fees incurred as result

of opposing party’s failure to comply with notice provisions of

alimony-termination statute); N.J.S.A. 10:5-27.1 (allowing

attorney’s fees to prevailing party in successful Law Against

Discrimination actions and in unsuccessful Law Against

Discrimination actions brought in bad faith); N.J.S.A. 10:6-2

(allowing attorney’s fees to prevailing party in claims pursuant

to New Jersey Civil Rights Act); N.J.S.A. 17:33A-7 (allowing

attorney’s fees to insurance company damaged by violation of

Insurance Fraud Prevention Act); N.J.S.A. 19:31-29 (allowing

attorney’s fees to prevailing party where Secretary of State

                                3
fails to respond to alleged election violations within timeframe

designated by statute); N.J.S.A. 34:11B-12 (allowing attorney’s

fees to prevailing party in action pursuant to Family Leave

Act); N.J.S.A. 34:19-5 (allowing attorney’s fees to prevailing

plaintiff in claim under Conscientious Employee Protection Act);

N.J.S.A. 34:19-6 (allowing attorney’s fees to defendant under

Conscientious Employee Protection Act where claim is baseless

and employee does not file voluntary dismissal within reasonable

time after discovering this); N.J.S.A. 45:1-25 (allowing

attorney’s fees to State in action pursuant to Health Care

Professional Responsibility and Reporting Enhancement Act);

N.J.S.A. 52:4C-5 (allowing attorney’s fees to prevailing party

in successful action for mistaken imprisonment); N.J.S.A. 56:9-

10(b) (allowing attorney’s fees to plaintiff where court issues

permanent injunction pursuant to New Jersey Antitrust Act);

N.J.S.A. 56:12-85 (allowing attorney’s fees to consumer in

successful claim under Consumer Protection Leasing Act);

N.J.S.A. 59:9-5 (allowing attorney’s fees to successful claimant

under Tort Claims Act).

                                B.

    Our Court Rules also permit fee shifting in a number of

defined instances.   See generally R. 4:42-9; Innes, supra, __

N.J. at __ (slip op. at 12).   For example, attorney’s fees are

permissible out of a decedent’s estate when “probate is refused”

                                 4
or when a “contestant had reasonable cause for contesting the

validity of the will or codicil.”       R. 4:42-9(a)(3).   Admittedly,

the court rule does not provide for attorney’s fees in the

precise circumstances of this case.      The logic of the rule,

however, applies perfectly here.       Folcher’s heirs have

established more than a “reasonable cause for contesting the

validity of the will or codicil.”      The rightful heirs have

exposed the wrongdoing of a party who presented a fraudulent

codicil -- a party whose corrupt conduct has depleted the

estate’s assets.    Unless Bernice is made to reimburse the

attorney’s fees expended by the estate in this case, there may

be no assets left to distribute.       Our Court Rules are “construed

to secure a just determination, simplicity in procedure,

fairness in administration and the elimination of unjustifiable

expense and delay.”    R. 1:1-2(a).     To the extent our current

rules do not cover the egregious wrongdoing in this case, this

Court is empowered to amend the rules and regularly does so to

further promote justice and fairness.       See Pressler & Veniero,

Current N.J. Court Rules viii-xii (Gann 2016).

                                 C.

    Importantly, this Court has not hesitated to add exceptions

to the American Rule when “the interest of equity [has]

demand[ed] it.”    Niles, supra, 176 N.J. at 298 (alteration in

original) (quoting In re Estate of Lash, 169 N.J. 20, 43 (2001)

                                   5
(Verniero & LaVecchia, JJ., dissenting)).     We permit fee

shifting in attorney malpractice actions to make the client

whole -- because the cost of retaining counsel constitutes

consequential damages.   Saffer v. Willoughby, 143 N.J. 256, 272

(1996).   We also have permitted an award of attorney’s fees in

an action against an attorney who intentionally violated his

fiduciary duty to a client, Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 442-43 (2001), in an action against the

administrator of an estate who misappropriated the estate’s

funds, Lash, supra, 169 N.J. at 23, and in an action against a

trustee of an estate who exercised undue influence over a

testator, Niles, supra, 176 N.J. at 298-99.     Most recently, this

Court held that a counsel-fees award can be entered against an

attorney who intentionally breaches her fiduciary duty to honor

an escrow agreement that benefits a non-client.     Innes, supra,

__ N.J. at __ (slip op. at 20-21).

                                II.

                                A.

    The American Rule serves the laudable purpose of promoting

access to our courts by ensuring litigants that, if they lose

their case, they will not have to pay the prevailing party’s

legal fees.   See Niles, supra, 176 N.J. at 294.    The prospect of

potentially ruinous legal fees, understandably, will discourage

litigation brought in good faith.     On the other hand, our

                                 6
developing common and statutory law recognize that through fee

shifting the “victims of perfidious behavior” can be made whole,

id. at 296, and that frivolous and fraudulent litigation can be

deterred, Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 172-73

(2006) (noting that statutory award of attorney’s fees, in part,

is intended to deter such conduct).   In considering whether to

carve out an exception to the American Rule, we must weigh those

competing principles.    The American Rule is a common-law

principle, not an unalterable commandment.     The common law is an

expression of public policy and social values.     See Hopkins v.

Fox & Lazo Realtors, 132 N.J. 426, 435 (1993).     As our public

policy matures and our social values evolve, so must the common

law, ibid., and so must the American Rule.

    In Niles, supra, the Court understood that the equitable

remedy of counsel fees might be required in “the unique

circumstances” of a case, even in the absence of an applicable

statute or court rule.   176 N.J. at 296-97.    Niles, like the

present case, was litigated in the probate court -- a court of

equity.   In Niles, a mother and son “unduly influenced” an

eighty-eight-year-old single woman suffering from dementia to

name the son the trustee of three inter vivos trust agreements.

Id. at 286.   With the former trustee removed, the mother and son

manipulated the elderly woman “to confer upon them substantial

economic benefits under the altered trust agreements.”       Ibid.

                                  7
We held the mother-son team responsible for all reasonable

counsel fees incurred by the parties who litigated “to restore

the estate’s assets to what they would have been had the undue

influence not occurred.”    Ibid.

    We explained in Niles that “undue influence” is “a form of

fraud” and is “an egregious intentional tort that . . .

establishes a basis for punitive damages in a common law cause

of action.”   Id. at 300.   We concluded that “the undue influence

exception [to the American Rule] does not violate the purposes”

underlying the Rule.    Ibid.

                                    B.

    There is no meaningful distinction between Niles and the

present case.    Indeed, the fraud here exceeded the typical undue

influence scenario in which, through “mental, moral or physical

exertion,” the wrongdoers overcome “the free agency of a

testator.”    See id. at 299 (quoting Haynes v. First Nat’l State

Bank of N.J., 87 N.J. 163, 176 (1981)).    The probate court in

this case found that Bernice “committed acts of undue influence

when she compelled [Folcher] to transfer assets/personal

property during the last week of his life.”   The court also

determined that Bernice “committed fraud and forgery in the

making and/or execution of” the two codicils and deed to the

marital home.

    Unlike the present case, in Niles one of the wrongdoers --

                                    8
the son -- wangled his way into the role of trustee to exert his

undue influence.     Id. at 286.   His non-trustee scheming mother,

however, was made jointly and severally liable for counsel’s

fees.    Ibid.

    Bernice admittedly was not the executor of her husband’s

estate.     Nevertheless, as Folcher’s wife, she used her

confidential relationship to exert egregious undue influence

over her infirm and isolated husband.       She also engaged in

intentional misconduct by fraudulently creating documents for

the purpose of defrauding Folcher’s rightful heirs.        And, to

that end, she filed false documents with the probate court to

corrupt the civil justice system.

    As in Niles, the issue here is whether “the unique

circumstances of this case” call for the equitable remedy of an

award of attorney’s fees.     Id. at 296.

                                   IV.

    The majority’s inflexible approach to the American Rule in

this case is at odds with the evolving ethos of our common law.

The Folcher estate’s assets have been depleted by having to fend

off Bernice’s bogus legal claims.        The attorney’s fees incurred

represent consequential damages suffered by Folcher’s rightful

heirs.     Shifting attorney’s fees, moreover, advances the public

policy of deterring the type of wrongful conduct that occurred

here.     This case more than qualifies as a sensible exception to

                                   9
the American Rule.

    Remanding this case for further proceedings relating to

punitive damages will lead to more wasteful litigation for an

estate with limited assets.   It is pointless to award punitive

damages in place of awarding the consequential damages of

attorney’s fees suffered by the estate.     To the extent that

attorney’s fees are intended to deter and punish, they serve the

purpose of punitive damages in this case.     See Land, supra, 186

N.J. at 185 (Albin, J., dissenting).   I cannot agree to the

majority’s exaltation of form over substance, making attorney’s

fees impermissible while allowing for punitive damages.

    The majority has undone an equitable ruling that made whole

the victims of Bernice’s fraud.    I would end the litigation

today and affirm the judgment of the Appellate Division,

requiring Bernice to reimburse the Folcher estate for the

attorney’s fees expended as a result of her egregious

misconduct.   I therefore respectfully dissent.




                                  10
                    SUPREME COURT OF NEW JERSEY


NO.   A-3                                       SEPTEMBER TERM 2014
ON CERTIFICATION FROM                  Appellate Division, Superior Court




IN THE MATTER OF THE ESTATE
OF ADRIAN J. FOLCHER (a/k/a
ADRIAN J. FOLCHER, JR.),
DECEASED.




DECIDED             April 26, 2016
             Chief Justice Rabner                           PRESIDING
OPINION BY       Justice LaVecchia
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY        Justice Albin


                                     AFFIRMED/
 CHECKLIST                           REVERSED/             DISSENT
                                     REMANDED
 CHIEF JUSTICE RABNER                       X
 JUSTICE LaVECCHIA                          X
 JUSTICE ALBIN                                                 X
 JUSTICE PATTERSON                          X
 JUSTICE FERNANDEZ-VINA              -----------------
 JUSTICE SOLOMON                            X
 JUDGE CUFF (t/a)                           X
 TOTALS                                     5                  1
