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A New Jersey appeals court has ordered an inquiry into whether Philadelphia Judge Sandra Mazer Moss exercised proper fiduciary duties as the executor of her father’s estate and whether she is personally responsible for at least part of the estate’s $200,000 legal bill. As executor, Moss spent three years fending off a brother’s accusations that she took advantage of her father’s ill health and manipulated him into signing a will that benefited her to the detriment of other family members. That case settled, but another brother, who was not in the dispute, wants Moss to pay legal fees to the estate’s counsel, Cozen O’Connor in Cherry Hill. The work benefited Mazer, not the estate, so she should pay the bills, that brother said. The appeals court found the argument compelling. On Jan. 24, a three-judge panel reversed a trial court’s award of fees against the estate and ordered a determination of how much of the work benefited Moss and how much the estate. That, in turn, could lead to an examination of whether she breached her duty by making distributions to beneficiaries that seemed at variance with the instructions in the will. Suits by beneficiaries against executors are common forms of estate litigation. But it’s not often that the executor on the hot seat is a judge. The Canons of Judicial Conduct in New Jersey and Pennsylvania allow judges to serve as executors of family members’ estates, as long as any disputes do not end up in courts in which they serve. Since 1983, Moss has sat on the court of common pleas, Pennsylvania’s court of original jurisdiction. “The judge thinks that she conducted herself in a wholly appropriate manner,” Moss’ attorney, Ira Megdal of Cozen O’Connor, said. More importantly, he said, the trial court that spent nearly two years with the case found in her favor. The case, In re Estate of Marvin Mazer, ended up in Camden County Superior Court, and, according to the appellate opinion, here’s what happened: Marvin Mazer of Atlantic City died in January 2001, leaving Moss, her two brothers, grandchildren and an estate worth about $320,000, not counting personal property. Moss was the executor under a 1999 will, and trouble with one sibling broke out in June 2001 when she submitted the will for probate. Brother Lawrence Mazer alleged in a complaint that the father was not mentally capable of making a will and gave up control of his finances to Moss because she was a judge. She used undue influence to get him to gift a $200,000 Palm Beach condominium to her and to create a will inconsistent with his wishes as expressed in a 1992 living trust, the suit said. Megdal said there was never a finding of undue influence on the part of Moss. Under the trust, the condominium was to be part of the trust that would be divided in equal shares among the five grandchildren at Mazer’s death, the suit said. Moss denied the allegations and complained that Lawrence had nothing to gain from the suit and lots to lose, in terms of the drain caused by legal fees. She easily defeated, on jurisdictional grounds, a count in the complaint calling for her to be sanctioned or disciplined for violating the Pennsylvania Judicial Code of Conduct. Still, the allegations and the litigation dragged on for three years until February 2004, when Lawrence Mazer and Moss reached a settlement. It called for Moss to keep the Florida condo, but let Lawrence have some personal items. As for fees, Moss was not required to reimburse the estate for work done by Cozen O’Connor, and Lawrence Mazer would pay his own fees. And Moss agreed to pay $100,000 to the estate to be split among the five grandchildren in varying amounts ranging from $12,500 to $25,000, plus $20,000 for a step-grandchild. Enter brother Norman Mazer. He had stayed out of the dispute, except to file a motion to compel his siblings to pay the costs of their squabble. And in July 2004, when Moss sought approval for the accounting, fees and expenses, exceptions were filed on behalf of Norman Mazer’s two children, as beneficiaries of the estate. They argued that the fees paid by the estate benefited only Moss and that she should pay them. And they argued that the $100,000 Moss paid into the estate under the settlement should have been distributed according to the will, in equal amounts to the grandchildren, plus $5,000 to the step-grandchild, not $20,000. But Superior Court Judge Allan Vogelson ruled that Norman Mazer, by opting out of the settlement, could not block its terms and he accepted Moss’ argument that the fees were not caused by the estate but by Lawrence’s suit. “It’s very difficult to see how she could be criticized for making a settlement” that was made before the court and incorporated into a court order, Megdal said. Appellate Division Judges Jack Lintner, Sandra Reisner and Christine Miniman saw it Norman Mazer’s way. They cited precedents that say fiduciaries are responsible for fees in matters in which their interests are at odds with the beneficiaries and precedents against paying fees for work that ends up diminishing the estate. “It is abundantly clear that any fees incurred in connection with the litigation instituted by Lawrence may only be paid out of the $100,000 paid to the estate by Sandra,” the court said. It said the trial court must determine whether Moss had reasonable grounds to defend the suit against her and, if so, what portion of the fees was for the benefit of the estate and what was for her benefit individually. That will require Cozen O’Connor to do a better job justifying its bills. The firm’s certification in the trial court included very little information required by fee award rules, the appeals judges said. On remand, the court also must consider whether the number of hours expended were necessary. If any of the $100,000 that Moss paid into the estate is left after the fee-setting process, the judge will have to determine whether Moss “properly exercised her fiduciary duty” when she distributed the $100,000 in varying amounts rather than in equal amounts as required by the will. That inquiry won’t be necessary if the judge determines the estate’s portion of the fee wipes out the entire $100,000. Megdal characterized the litigation as “a family dispute over a modest estate.” He said the trial court agreed with Moss’ position after weighing the law and the facts appropriate. “We believe the trial court was correct,” he said. He said he would “assuredly file a very strong petition with the Supreme Court asking them to review” the case, but he also noted that the appellate opinion calls for settlement talks. The lawyer for Norman Mazer’s children, Paul Melletz of Cherry Hill, declined to comment. This article originally appeared in the New Jersey Law Journal , a publication of ALM. Gina Passarella contributed to this article. •

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