There are several grounds to object to the estate paying the fiduciary’s legal fees. One of the most basic objections is to challenge the reasonableness and necessity of the legal services performed (see Matter of Bradley, 128 Misc 2d 240, 241 [Sur Ct, Nassau County 1985] [reducing the attorney’s fee because “some of the work performed was totally unnecessary and the time spent on the balance excessive and unjustified”]; Matter of Bloomingdale, 172 Misc 218, 228 [Sur Ct, New York County 1939] [reducing the attorney’s fee for charges where most of the work of the attorney “involved was unnecessary and of no advantage to the estate and was a duplication of the work of the attorneys who had represented both the executor and executrix in prior years”]; see also JK Two LLC v Garber, 171 AD3d 496, 496-497 [1st Dept 2019] [reduction of the amount requested to eliminate work that was duplicative or was unnecessarily performed; holding that the determination of a reasonable attorney’s fee can take into account whether a party has engaged in conduct or taken positions resulting in delay or unnecessary litigation]; Matter of Rose BB., 35 AD3d 1044, 1045 [3d Dept 2006]).
This may be accomplished by reviewing the billing invoices and considering each time entry individually and collectively. Also review the attorney affidavit discussing the services performed and consider the following: the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer’s experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved.
You may also challenge the fiduciary’s fee request based on the lack of supporting documentation. The courts have reduced fees, for example, where the fee request is based upon generalized descriptions of the legal services rendered rather than contemporaneously recorded time charges for the work (see Matter of Phelan, 173 AD2d 621, 621-622 [2d Dept 1991]; Matter of Kelly, 187 AD2d 718, 718-719 [2d Dept 1992] [“We have repeatedly emphasized the importance of contemporaneously-maintained time records as a key component of an attorney’s affirmation of legal services”]; Matter of Quade, 121 AD2d 780, 782 [3d Dept 1986] [acknowledging the importance of time records and holding that the Surrogate’s Court is not obligated to accept unsupported testimony regarding the amount of time claimed to be compensable”]; 22 NYCRR § 207.45 [a] [requiring information regarding “the services rendered, in detail; the time spent; and the method or basis by which the requested compensation was determined”]).
Where the fiduciary is guilty of a breach of fiduciary duty or self-dealing, object. In such cases, the attorney’s fee incurred in defending the illegal acts should not be charged to the estate (see Matter of Hildreth’s Will, 274 AD 611, 615-616 [2d Dept 1949], affd 301 NY 705 [1950]; Matter of Kenney, 64 Misc 3d 1232[A], 2019 NY Slip Op 51389[U], *9 [Sur Ct, Albany County 2019] [holding that inasmuch as the legal fees were incurred to defend petitioner for his wrongdoing, and the associated legal services benefitted him and not the estate, the legal fees were the responsibility of petitioner personally, and not the estate]; see also Matter of Newhoff, 107 AD2d 417, 423 [2d Dept 1985]; Chiesa v Keogh, 23 AD2d 562, 562 [2d Dept 1965] [“the services of counsel to represent an executor against a charge of self-dealing may not be charged to the estate”]).
Similarly, consider objecting to the payment of attorney’s fees for legal services which were necessitated by the mistake, neglect, and/or misconduct of the fiduciary (see e.g. Matter of Newhoff, 107 AD2d at 423; Chiesa, 23 AD2d at 562 [“Although the erroneous computation of commissions by the executors was the result of an honest mistake, the beneficiaries of the estate should not be penalized by the payment of legal services for defending the executors with respect to such mistake”]; Matter of Hildreth, 274 App Div at 611; Matter of Terranova, NYLJ, July 11, 2012, at 25, col 5 [Sur Ct, Queens County] [denying fee application where found the need for the fiduciary to retain new counsel resulted solely from his own misconduct and holding that the trust should not have to pay for incoming counsel’s learning curve]; 8 Warren’s Heaton on Surrogate’s Court Practice § 106.04 [1] [a] [LexisNexis 2020]).
In addition, where the services benefitted only the fiduciary, you may object to them being recoverable against the estate (see Matter of Shambo, 169 AD3d 1201, 1207-1208 [3d Dept 2019] [“Given the minimal, if any, benefit to the estate derived from the years of legal representation …Surrogate’s Court did not abuse its discretion when it denied the payment of counsel fees from the estate”]; Matter of Rodken, 2 AD3d 1008, 1009 [3d Dept 2003] [“An attorney may be compensated from estate funds only for services that benefit the estate”]; Matter of Baxter, 196 AD2d 186, 186 [4th Dept 1994] [reversing attorney’s fee award where the legal services did not benefit the estate but only benefitted the individuals whom the attorney represented]; Matter of Klenk, 151 Misc 2d 863, 863 [Sur Ct, Suffolk County 1991], affd 204 AD2d 640 [2d Dept 1994] [holding that the attorneys who represented the co-fiduciaries in a contested accounting proceeding were not entitled to be paid from the estate since their services were rendered to support the co-fiduciaries in litigation regarding commissions and not to further the interest of the estate]; see also Matter of Gutchess, 117 AD2d 852, 855[3d Dept 1986] [reducing the attorney’s fee and holding that “the evidence does not support the conclusion that petitioner’s representation on [a particular claim] produced significantly favorable results”]; Matter of Schwartz, N.Y.L.J., Oct. 17, 2017, at 22, col. 5, 2017 NY Misc. LEXIS 3890 [Sur Ct, New York County] [holding that the attorney failed to show that the time purportedly spent by him benefited the estate in any way]).