                     NOT FOR PUBLICATION WITHOUT THE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-0258-16T4


IN THE MATTER OF THE ESTATE OF
EDWARD WLODARCZYK,

     Deceased.
——————————————————————————————————
          Argued May 21, 2018 – Decided July 17, 2018

           Before Judges Ostrer, Rose, and Firko.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Probate Part, Camden
           County, Docket No. CP-0037-2015.

           John E. Lanza argued the cause for appellant
           Anna   Wlodarczyk  (Lanza   &  Lanza,   LLP,
           attorneys; John E. Lanza, of counsel and on
           the briefs; Christopher J. Trofimov, on the
           briefs).

           David A. Thatcher argued the cause for
           respondent    Trinity   Evangelical    Church
           (Thatcher Passarella, PC, attorneys; David A.
           Thatcher, of counsel and on the brief).

           Marc A. Krefetz, Deputy Attorney General,
           argued the cause for respondent State of New
           Jersey (Gurbir S. Grewal, Attorney General,
           attorney; Melissa H. Raksa, Assistant Attorney
           General, of counsel; Marc A. Krefetz, on the
           brief).

PER CURIAM
     In this probate matter, plaintiff Anna Wlodarczyk appeals

from a July 5, 2016 order granting Trinity Evangelical Lutheran

Church's ("Trinity Church") motion for involuntary dismissal at

the close of plaintiff's case.        The Attorney General of New Jersey

("AG") in his parens patriae capacity, joined in the motion.

Plaintiff also appeals from an August 31, 2016 order granting her

counsel fees, arguing the amount awarded was less than the amount

sought.     For the reasons that follow, we affirm the July 5, 2016

order, and vacate the August 31, 2016 order.

                                          I.

     This    appeal   has    its   genesis     in   a   "pour-over"   will   and

revocable living trust made by testator Edward Wlodarczyk, at the

age of sixty one.     Unmarried and childless when testator executed

the will and trust, plaintiff was his mother and sole heir.

     Pursuant to the terms of the will, testator divided his $2.1

million estate between plaintiff and Trinity Church in equal

shares.   He also provided that, if plaintiff predeceased him, her

fifty percent share would be divided equally between his cousins,

Richard Robinson and Joan Dufner.              If the named beneficiaries

predeceased testator, their shares would be distributed according

to intestacy laws.          As a pour-over will, testator devised his

entire estate, including personal and household effects, to the

trust.

                                      2                                 A-0258-16T4
     According to the trust agreement, testator designated himself

as the sole trustee until his death.              After his death, the trust

income and principal distribution would be divided equally between

plaintiff and Trinity Church.          The trust also directed that if

plaintiff predeceased testator, her share of the trust estate

would be divided equally among Robinson, Dufner, Dr. Christine

Newman and Jeanne Perch.      Further, if Trinity Church were not in

existence at the time of testator's death, its share would be

distributed to plaintiff.

     Testator's will and trust were prepared by David A. Faloni,

Esq.,   pursuant   to   a   referral       from    Kaehall   Estate   Planning

Coordinators ("Kaehall").     Because Kaehall referred a large volume

of clients to his firm, Faloni agreed to accept a flat fee of $375

to draft "any or all" documents listed in a Kaehall form ("referral

form"), including the documents executed by testator.                 Pursuant

to the terms of the referral form, testator was not required to

retain Faloni, but testator checked the box indicating his desire

to do so.

     The referral form had been provided to testator by Kaehall's

representative,    Bernice     Folcher,       during     their   meeting      at

plaintiff's home on April 20, 2007.          Earlier that day, Folcher had

met with plaintiff to review potential changes to her existing



                                       3                               A-0258-16T4
trust.         Plaintiff   told   Folcher   her    son   was   interested     in

establishing a living trust agreement.

      Folcher memorialized information she received from testator

about    his    assets,    beneficiaries,    and    special    directives   and

instructions, on an intake form.             Folcher did not suggest to

testator how to distribute his assets.            Rather, testator was "very

opinionated, and he told [her] exactly what he wanted."             Plaintiff

was present during Folcher's meeting with testator.             Plaintiff did

not object to testator's disposition of his assets.

      Testator issued a check to Faloni for $375, and a check to

Kaehall for $1620.         Folcher sent both checks and the intake form

to   Kaehall,     which    in   turn   contacted   testator,    verified    his

information, and forwarded the paperwork to Faloni.

      Following receipt of the paperwork by his office, Faloni's

paralegal contacted testator and also confirmed his information,

including the names and addresses of his intended beneficiaries

and the shares of his estate he wished to bequeath.                Faloni did

not personally meet testator, but spoke with him telephonically

for approximately thirty-five to forty minutes before drafting his

will and trust.1



1
 In addition to the will and trust at issue in this appeal, Faloni
drafted a living will, a general power of attorney, and a power
of attorney for health care.

                                        4                              A-0258-16T4
     During their conversation, Faloni explained the distinction

between wills and trusts, and reviewed Medicaid planning and estate

taxation.        They discussed testator's intentions, and testator

indicated his "mother[] wants to make sure she's taken care of."

Testator told Faloni he would do so through Medicaid planning, to

avoid depleting his estate if he were hospitalized for an extended

period of time.       Faloni believed testator procured insurance to

provide additional protection for his mother.               Faloni did not

suggest that testator should devise part of his estate to Trinity

Church.

     Pursuant to testator's instructions, Faloni forwarded the

completed    documents   to    Kaehall    for   delivery   to    testator   for

execution. Faloni included correspondence, explaining the process

to execute each document properly.         According to Folcher, testator

read the documents, which she then notarized in the presence of

witnesses.

     Testator died on November 21, 2012.               After his will was

admitted    to    probate,    plaintiff   filed   a   verified     complaint,2

challenging the validity of the will and trust.                 In particular,

plaintiff claimed the documents were unenforceable because they


2
  Plaintiff did not personally verify the complaint. Rather, the
verification is signed by Dufner as plaintiff's "Attorney in Fact"
pursuant to a power of attorney executed by plaintiff on November
21, 2012, the same day testator died.

                                      5                                A-0258-16T4
were the product of a consumer fraud scheme.         She also alleged the

documents were the result of "mistake by way of a scrivener's

error" because they did not evince her son's intention to provide

for her.

       Trial was held on two non-consecutive days in June 2016.

Following oral argument but prior to the commencement of testimony,

the judge denied plaintiff's motions to disqualify the AG, and

permit Dufner to testify about plaintiff's state of mind.

       The judge granted plaintiff's motion to read portions of the

deposition   of    Kaehall's   former     Vice   President,   Keith    Ervin,

because he could not be served with process.            Apparently, Ervin

had been deposed in a separate legal malpractice and tort action,

filed by testator's executor, pertaining to a "multi-state trust

marketing scheme."      Among other things, Ervin testified generally

that   Kaehall    had   employed   "unlicensed[]    insurance   or    annuity

salepersons to solicit potential customers who required estate

planning services."

       Ninety-five years old at the time of trial, plaintiff did not

testify because she did not have the "capacity or the strength."

Plaintiff presented the testimony of Folcher and Faloni.             In doing




                                      6                               A-0258-16T4
so, the trial judge denied her application to treat both as

"hostile witnesses."3

       Following the conclusion of oral argument on June 22, 2016,

the   trial    judge   dismissed     plaintiff's     complaint,      rendering       a

cogent oral opinion.         Initially, the court recognized testator's

capacity was not in issue. Nor was testimony adduced that testator

did    not    understand   English      or   otherwise     "had      any    trouble

understanding what he was doing and voicing his opinion."

       Relevant to plaintiff's claims, the judge found Faloni's use

of a template to prepare the will and trust was not fatal,

reasoning "[l]awyers do it all the time, and they trade documents

and update them[.]"        Nor did she find any issue with the amount

of    time    Faloni   spent   with    testator    during      their       telephone

conference,      following     his     paralegal's      initial      contact      and

verification of testator's information.              Rather, the judge found

Faloni "explain[ed] what the document accomplishes."

       Specifically,    the    judge    observed     testator's      wishes      were

simple and the resulting documents were simple:

              The result is this. I, as the decedent, when
              I die, I want to do this. I want half of my
              money to go here, and I want half of my money
              to go here.   And if my mother's not alive,
              these are the people I want as substitutes.
              If the church no longer exists, this is where

3
  During her testimony,         Folcher      admitted    she   had     twice     been
convicted of fraud.

                                         7                                   A-0258-16T4
            I want it[s money] to go.    How much . . .
            clear[er] could it be than that?

     The judge also discounted the mistakes recorded by Folcher

in Kaehall's intake sheets as immaterial because they had no

bearing on how testator's assets would be distributed at the time

of his death.4   Rather, the court found "other than . . . try[ing]

to sell him another product, exactly what he owned" was not

relevant.     Whether Folcher "was hoping to parlay that into some

kind of estate planning, like an annuity . . . [is not] part of

this case."

     Determining there was no indication Folcher did anything

wrong by performing the intake and referral in the present case,

the judge recognized Folcher "[was not] even trying, at the time

she met [testator] to solicit him to sell him a product."    On the

contrary, Folcher spoke with testator at plaintiff's suggestion.

     For the sake of argument, the judge assumed Folcher was not

a credible witness and had in fact solicited testator directly.

Nevertheless, the judge recognized she still could not conclude

there was any connection between Folcher and Trinity Church.




4
  The intake form contained some obvious errors.   For example,
Folcher listed assets in the space reserved for his spouse, but
he was unmarried. The judge attributed that mistake to lack of
space on the form.

                                  8                         A-0258-16T4
Folcher was not a member of the church, and she would not derive

any benefit by testator's bequest to the church.

     The judge further recognized an "undue influence theory" was

not at issue here.       Because the contact between Folcher and

testator was "so limited, she [did not] have time to unduly

influence [testator]."     Rather, Folcher was similar to "a data

processor"   taking   information    from   testator   and   putting   that

information on a form that is sent to Kaehall, which in turn sent

it to Faloni.

     Ultimately, the judge recognized the process of executing the

testamentary documents was "streamlined," and not characterized

by a typical in-person meeting at a lawyer's office. Nevertheless,

she found there was no evidence in the record to prove "what he

intended or what he told [Folcher and Faloni] to do was not

ultimately incorporated into those documents that he signed."

     Following a subsequent hearing, the trial court granted, in

part,   plaintiff's   motion   for   counsel   fees,   finding   she    had

reasonable cause to challenge the will. However, the judge reduced

plaintiff's fee application from $89,000 to $10,000.          This appeal

followed.

     On appeal, plaintiff contends:         (1) the trial court should

have shifted the burden to Trinity Church to prove the will and

trust were valid because the existence of a trust marketing scheme

                                     9                            A-0258-16T4
created a conflict of interest for Faloni; (2) the existence of a

consumer fraud scheme rendered both documents voidable; (3) the

testimony of Folcher and Faloni was not credible; (4) the trial

court erred in reducing plaintiff's fee award without evaluating

the requisite factors for assessing counsel fees; and (5) the AG

should be disqualified from participating on behalf of the charity

church   in   any   future   hearings    because   plaintiff    has   alleged

misconduct in the drafting of the will and trust.

                                    II.

                                    A.

     "A motion for involuntary dismissal is premised 'on the ground

that upon the facts and upon the law the plaintiff has shown no

right to relief.'"      ADS Assocs. v. Oritani Sav. Bank, 219 N.J.

496, 510 (2014) (quoting R. 4:37-2(b)).             The "motion shall be

denied   if   the   evidence,   together    with   legitimate    inferences

therefrom, could sustain a judgment in plaintiff's favor."                   R.

4:37-2(b).     "If the court, accepting as true all the evidence

which supports the position of the party defending against the

motion and according him the benefit of all inferences which can

reasonably    and   legitimately   be    deduced   therefrom,    finds    that

reasonable minds could differ, then the motion must be denied."

Id. at 510-11 (citations omitted).        "Stated differently, dismissal



                                    10                                A-0258-16T4
is appropriate when no rational [factfinder] could conclude from

the evidence that an essential element of the plaintiff's case is

present."    Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1

on R. 4:37-2(b) (2018); see also Pitts v. Newark Bd. of Educ., 337

N.J. Super. 331, 340 (App. Div. 2001). "An appellate court applies

the same standard when it reviews a trial court's grant or denial

of a Rule 4:37-2(b) motion for involuntary dismissal."                 ADS

Assocs., 219 N.J. at 511 (citing Fox v. Millman, 210 N.J. 401, 428

(2012)).

     "A trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to

any special deference."         Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).         We review a trial court's

interpretation and application of the law de novo.          ADS Assocs.,

219 N.J. at 511. Because plaintiff presented insufficient evidence

to sustain her burden of proof on her causes of action, here, the

trial judge's granting of defendant's motion for an involuntary

dismissal was appropriate.

     We     are   guided   by    well-established   principles   in   will

disputes.     We are "enjoined to strain toward effectuating the

testator's probable intent to accomplish what he would have done

had he envisioned the present inquiry."         In re Estate of Payne,



                                     11                           A-0258-16T4
186 N.J. 324, 335 (2006) (citing In re Estate of Branigan, 129

N.J. 324, 332 (1992)).             "In any attack upon the validity of a

will, it is generally presumed that 'the testator was of sound

mind and competent when he executed the will.'"                  Haynes v. First

Nat'l State Bank, 87 N.J. 163, 175-76 (1981) (quoting Gellert v.

Livingston, 5 N.J. 65, 71 (1950)).

       "If a will is tainted, however, by 'undue influence,' it may

be overturned."        Id. at 176.        So too, "A trust is void to the

extent    its    creation    was    induced      by   fraud,   duress,    or     undue

influence."       N.J.S.A. 3B:31-23.          Ordinarily, the opponent of a

will     bears   the     burden    to    prove    undue    influence.          In     re

Rittenhouse's Will, 19 N.J. 376, 378-79 (1955).                 However, certain

circumstances      may    create     a   presumption      of   undue     influence,

shifting the burden of proof to the will's proponent.                    Ibid.      Two

conditions must be satisfied as a condition precedent to this

burden-shifting:         (1) a confidential relationship between the

testator and a beneficiary; and (2) the presence of suspicious

circumstances requiring an explanation.                Ibid.

       In the present action, plaintiff has not alleged an undue

influence theory.         Nevertheless, she argues, without any binding

legal support, that the same burden-shifting should occur here

because the alleged fraudulent scheme by Kaehall created a conflict

of interest for Faloni.           However, the authority she cites from two

                                         12                                    A-0258-16T4
other jurisdictions is distinguishable from the present action

where Folcher merely gathered information which was intended for

use in a legal document.5 Folcher did not render advice to testator

or plaintiff about creating a will or revocable trust, which were

both drafted by Faloni.

     Our independent review of the record leads us to the same

conclusion as the trial judge.     We agree there was no evidence of

fraudulent conduct in the procuring of testator's will and trust

here.    We    further   agree   that   the   propriety   of   Kaehall's

solicitation was not relevant to the judge's determination.

     Rather, testator's intention was clearly expressed in the

testamentary documents, which provide for an equal division of his

estate between plaintiff and Trinity Church.       As the trial judge

aptly observed, there has been no showing that Folcher or Faloni

is affiliated with Trinity Church, which could implicate a conflict

of interest.    By contrast, testator was a member of the church,

and his bequest is logical where, as here, it did not interfere


5
  Comm. on Prof'l Ethics & Conduct v. Baker, 492 N.W.2d 695, 702-
03 (Iowa 1992) (reprimanding an attorney for allowing a trust
marketing company "to exercise the professional judgment [he]
should have exercised"); In re Mid-America Living Tr. Assocs., 927
S.W.2d 855, 863 (Mo. 1996)(finding the trust marketing companies
engaged in the unauthorized practice of law because they "were not
merely collecting information to fill in standardized forms" but
"they also were giving legal advice to their clients about choices
to be made and the legal effects of those choices").


                                  13                             A-0258-16T4
with his intention to provide for his elderly mother from the

assets of his substantial estate.

     We also are not persuaded by plaintiff's arguments that the

trial judge improperly credited the testimony of Folcher and

Faloni,    who   plaintiff   claims     were   hostile   witnesses. 6

"[C]redibility findings need not be explicitly enunciated if the

record as a whole makes the findings clear."      In re Taylor, 158

N.J. 644, 659 (1999) (citing State v. Locurto, 157 N.J. 463, 474

(1999)).   Further, we are not free to make our own credibility

determination.   Locurto, 157 N.J. at 472-75.    Although the trial

judge did not make specific detailed findings of credibility

regarding Faloni, she stated directly that Folcher's criminal

history did not affect her credibility in the present case because

Folcher did not gain anything from testator's designating Trinity

Church as a beneficiary.

     We, thus, discern no reason to disturb the trial court's

factual and credibility findings.     Those findings are entitled to




6
  Prior to their testimony, the trial court denied plaintiff's
application to treat Folcher and Faloni as hostile witness, pending
responses that appeared to be hostile. Plaintiff did not renew
her application as to either witness.         See N.J.R.E. 611(c)
(permitting leading questions "when a witness demonstrates
hostility or unresponsiveness").


                               14                            A-0258-16T4
our deference.         See e.g., N.J. Div. of Youth & Family Servs. v.

E.P., 196 N.J. 88, 104 (2008).

     Because      we     find        the    trial   judge    properly      dismissed

plaintiff's complaint, we need not reach her argument that the AG

should be disqualified in future proceedings.                   See Greenfield v.

N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006)

("An issue is moot when the decision sought in a matter, when

rendered,   can        have     no     practical    effect      on   the    existing

controversy." (Citation omitted)).

                                             B.

     We part company, however, with the trial court's award of

counsel fees.      Ordinarily, "fee determinations by trial courts

will be disturbed only on the rarest occasions, and then only

because of a clear abuse of discretion."                Rendine v. Pantzer, 141

N.J. 292, 317 (1995); see also Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 444 (2001) (citation omitted).

     Pursuant     to    Rule     4:42-9(a)(3),      a   trial    court     may   grant

attorney's fees in probate actions.                  "When, as here, there is

explicit legal authority for the court to award counsel fees, the

court calculates the award of counsel fees by determining the

'lodestar,' i.e. a reasonable hourly charge multiplied by the

number of hours expended."                 In re Probate of Will & Codicil of

Macool, 416 N.J. Super. 298, 313 (App. Div. 2010) (citing Rendine,

                                            15                               A-0258-16T4
141 N.J. at 334-35)).     "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."

R. 4:42-9(a)(3).

       Initially, although plaintiff did not succeed in challenging

the will and trust, the court properly found she was entitled to

a fee award.    Plaintiff had "reasonable cause for contesting the

validity of the will" pursuant to Rule 4:42-9(a)(3), because she

claimed testator was the victim of a scam or fraud, and filed a

complaint to challenge legal documents drafted as a result of that

purported scheme.

       The court did not, however, conduct the proper analysis of

the fee submitted.    In considering the rate submitted, the court

should have considered the prevailing market rate in the community

and ensured the rate is "fair, realistic, and accurate, or should

make appropriate adjustments."       Rendine, 141 N.J. at 337; Macool,

416 N.J. Super. at 314 (citation omitted).           Pursuant to the New

Jersey Rules of Professional Conduct ("RPC"), "[a] lawyer's fee

shall be reasonable," and shall be determined by the consideration

of a number of factors.     RPC 1.5(a); see also R. 4:42-9(b).      These

factors "must inform the calculation of the reasonableness of a

fee award in . . . every case."      City of Englewood v. Exxon Mobile

                                    16                            A-0258-16T4
Corp., 406 N.J. Super. 110, 125 (App. Div. 2009) (quoting Furst

v. Einstein Moomjy, Inc., 182 N.J. 1, 22 (2004)).

     Moreover, "a trial court must analyze [the RPC] factors in

determining an award of reasonable counsel fees and then must

state its reasons on the record for awarding a particular fee."

Furst, 182 N.J. at 21; R. 1:7-4(a) (requiring a trial court to

"find the facts and state its conclusions of law thereon in all

actions tried without a jury.").     "Without the benefit of [such]

findings and conclusions, we can only speculate about the reasons

for a trial court's decision." S.N. Golden Estates, Inc. v. Cont'l

Cas. Co., 293 N.J. Super. 395, 409 (App. Div. 1996) (quoting

Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986)).

     Here, plaintiff sought reimbursement of $89,000 for 243 hours

billed at a rate of $350 per hour.    In awarding a blanket fee of

$10,000, the trial court did not determine the lodestar rate, nor

the reasonable amount of hours spent under the circumstances of

this action.   While the AG argues that award represents forty

hours at $250 per hour, there is no indication in the record that

the court adopted that rationale.

     We recognize in reducing plaintiff's fee award that the court

clearly disagreed with the number of hours billed as "more than

what would have been required[,]" and determined counsel should

have advised plaintiff to cease pursuing the litigation when it

                               17                           A-0258-16T4
became    apparent   the   testamentary   documents   evinced   her   son's

intent.    Arguably, however, the court only considered two of the

eight RPC factors.     See RPC 1.5(a)(1) and (4).

     Based on the foregoing, we are constrained to vacate the

August 31, 2016 order awarding counsel fees because of these lack

of findings.    We remand this issue to the trial court to conduct

the required analysis pursuant to RPC 1.5(a), and make the required

findings of fact and conclusions of law pursuant to RPC 1:7-4.

See Loro v. Colliano, 354 N.J. Super. 212, 227 (App. Div. 2002).

We express no opinion about the appropriate fee award.

     Affirmed in part, vacated in part, and remanded for further

proceedings consistent with this opinion.             We do not retain

jurisdiction.




                                   18                             A-0258-16T4
