[WSBAPT] Attorney Fees in Will Contest

[Eric Nelsen]

I think it’s very important to show that she knew it was outdated and proceeded anyway—shows lack of good faith. Payment of attorney fees for probate administration tends to be governed by equity; so a bad actor is unlikely to get fees paid.

I just did a lot of research on the closely related issue of whether a named Executor has a duty to probate a will, and whether an Executor who has been actually appointed has a duty to defend the will. Here are my notes/quotes, most of which should be helpful:


RCW 11.24.050
Costs.
If the probate be revoked or the will annulled, assessment of costs shall be in the discretion of the court. If the will be sustained, the court may assess the costs against the contestant, including, unless it appears that the contestant acted with probable cause and in good faith, such reasonable attorney's fees as the court may deem proper.

The general rule is that personal representatives who perform their duty to defend a will in good faith may, in the discretion of the trial court, recover personal representative and attorney fees and costs. RCW 11.48.050 (all necessary expenses to care, manage, and settle estates); In re Estate of Reilly, 78 Wash.2d 623, 479 P.2d 1 (1970); In re Estate of Vance, 11 Wash.App. 375, 522 P.2d 1172 (1974); RCW 11.24.050 (attorney fees and costs allowed against unsuccessful contestant in will contest).
In re Estate of Shaughnessy, 702 P.2d 132, 104 Wn.2d 89 (Wash. 1985)

The rule for which the Jolly case, supra, is ample authority and which in our opinion is supported by the weight of judicial opinion and better reasoning is this: Where a will is contested, whether before or after its probate, it is the duty of the executor to take all legitimate steps to uphold the testamentary instrument, and if he does so in good faith, he is entitled to an allowance out of the estate for his costs and reasonable attorney fees necessarily incurred by him, regardless of whether or not he is successful in his defense against the contest of the will. 33 C.J.S., Executors and Administrators, § 225, p. 1217; 21 Am.Jur. 690, Executors and Administrators, § 549. For exhaustive annotations on the subject, see 10 A.L.R. 784, supplemented by 69 A.L.R. 1053, and 128 A.L.R. 1002.
In re Klein's Estate, 183 P.2d 518, 28 Wn.2d 456, 475 (Wash. 1947).

As administratrix with the will annexed, it [***12]  was her duty to defend the will, and she employed an attorney for that purpose. We think that that was a necessary expense of administration. See Rem. Rev. Stat., §§ 1526-1528 [P.P.C. §§ 192-5 -- 192-9]. See, also, In re Jolly's Estate, 3 Wn. (2d) 615, 101 P. (2d) 995, 128 A. L. R. 993, concerning which this court said, in its opinion in In re Klein's Estate, 28 Wn. (2d) 456, 183 P. (2d) 518....
In re Estate of Caine, 38 Wn.2d 545, 551, 231 P.2d 274 (1951).

31 Am.Jur.2d Executors and Administrators §183 (1967) states: “In the absence of statute, the executor-designate in a will has no legal duty to procure its probate. Citing Arkansas, Minnesota, New York cases. A statute may, however, make it the duty of the person named as executor to propound the will for probate. See 10 ALR 783 s. 40, 40 ALR2d 1407.

Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928). Widow petitioned for administration and refused to offer document as will; in such a case, a beneficiary thereof is entitled to petition for probate of the document. Silent as to whether or not widow had a duty to offer.

Kelly v. Kennedy, 133 Minn. 278, 158 N.W. 395 (1916). In the context of a request for allowance of attorney fees, the court held that Minnesota’s statute imposes a duty on the executor to deliver the will to the probate court, but no duty to actually probate it. “Sometimes a statute imposes upon the nominated executor the legal duty of procuring the probate or the general law is construed to impose the duty. Such duty does not rest upon the executor in this state. Dr. Kelly was in possession of the will when the testatrix died. It was then his duty to deliver it to the probate court. G.S. 1913, § 7258 (R.L. 1905, § 3667). He owed no further affirmative legal duty. He could petition for probate but the  [*280]  statute did not command him to do so. G.S. 1913, § 7266 (R.L. 1905, § 3675).” Note however that as a result, even though the will was initially accepted for probate and only later invalidated, the executor was not allowed fees from the Estate. “Without entering upon a discussion of the cases, we adopt the view taken by the trial court that HN5 the executor ultimately unsuccessful, though he acts in good faith, is not entitled to payment out of the fund, and this notwithstanding the will was admitted to probate in the first instance. This view results in a rule working well in practice and on the whole it is as just as any.” 133 Minn. at 281. This is contrary to Washington law on award of such fees, which impliedly means an executor here might in fact have a duty to defend the will.

Dodd v. Anderson, 197 N.Y. 466, 90 N.E. 1137 (1910). Again this has to do with when fees would be allowed to the executor relating to contest of a will. Held that one who presents a document as a will and it is rejected, is not entitled to fees from the estate, because he never became executor and could never bind the estate. “It may be admitted that one who is named as executor and desires to qualify, rests under a moral obligation to offer the putative will for probate, but it is not an imperative legal duty. That may be done by a devisee, legatee, creditor or any other person interested in the estate. (Code Civ. Pro. sec. 2614.) When a person who is named as executor in such a paper offers it  [**1139]  for probate and is met with a contest, he has before him two alternatives either of which he may adopt. He may cast the burden of the contest upon those who are to be benefited by the probate of the paper, or he may assume the burden himself.” 197 N.Y. at 471. But once the will is accepted for probate, “...what was at first simply a moral right has ripened into a legal duty, and the executor, as the legal representative [***16]  of the estate, is bound to employ all fair means to sustain the will under which he has been granted letters testamentary.” 197 N.Y. at 473.

31 Am.Jur.2d Executors and Administrators §538 (1967) states: “The contest of a will is sometimes viewed as a contest between the heirs and the legatees or devisees, and the cases hold that the executor is under no duty to assume sides in the contest and that if he does so, he cannot charge attorney fees to the estate. Citing Michigan, Pennsylvania, Virginia cases, 69 ALR 1048. Other cases hold, however, that it is the duty of one named as executor in a testamentary writing to propound the incident for probate, and that if he does so in good faith, necessary attorney fees incurred by him are chargeable to the estate. Citing Nebraska, New Jersey, Ohio, 20 ALR2d 1220, In re Jolly, 3 Wn.2d 615, 101 P.2d 995, 128 ALR 993. See 10 ALR 788, s. 40, 40 ALR2d 1423, §5(a).

Zimmer v. Saier, 155 Mich. 388 (1909). Special Adm could only preserve the estate while the interested parties fought the will contest. Dicta states “all that any administrator, whether special or general, could do would be to conserve the estate, pending the decision [***7]  as to the validity of the will, under the order of the probate court.” Id. at 391.

In re Estate of Faust, 364 Pa. 529 (1950). Holds directly that executor has no right to employ an attorney during a will contest; it is not administration and the heirs and those who take under the will should fight amongst themselves.

Butt v. Murden, 154 Va. 10 (1930) states: “If the executor acts in good faith, he is generally entitled [***10]  to reasonable allowances. In most contests, however, it is merely a question between persons who take the estate if the will is established and those who will take it under the law of descents and distributions if not established. In such cases the executor should leave these interested parties to conduct the litigation at their own expense and to abide its results without imposing substantial charges against the estate represented by the executor.”

In re Jolly concerns allowance of attorney fees to the PR in defending a will. In justifying it, the case says, “McCarthy had a will of Jolly's in his possession and  [*624]  it was his statutory duty to file the same in court and, when probated, to defend it. In re Vaughn's Estate, 149 Wash. 291, [2] 293, 270 Pac. 1030.” Vaughn’s Estate also has only to do with allowance of fees: “It was his duty to defend the will, and it is proper for him to be allowed costs and reasonable attorney's fees for so doing. 24 C.J. 100, § 536; McIntire v. McIntire, 192 U.S. 116, 48 L. Ed. 369, 24 S. Ct. 196 [(1904)]; In re Hentges' Estate, 86 Neb. 75, 124 N.W. 929; 26 L.R.A. (N.S.) 757, and note.” 149 Wash. at 293.

Similarly, McIntire (opinion by Justice Holmes) is a probate matter, which is in the Supreme Court because the probate was of a resident of the District of Columbia. See prior case McIntire v. McIntire, 162 U.S. 383, 384 (1896). As such it is mere persuasive authority. McIntire 192 U.S. 116 cites no authority for the proposition that “it was the proper business and duty of the administrator to defend the will...” 192 U.S. at 122. NOTE: This was an Administrator WWA.

And, the Nebraska case, Hentges’ Estate, also has to do with award of fees, and there also was an indication that the state statute may in fact impose a duty on a named executor to propounded a will for probate and, impliedly, defend it if challenged.


Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Inge Fordham
Sent: Thursday, May 5, 2022 1:25 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Attorney Fees in Will Contest

Colleagues,

I have a probate where the decedent’s daughter commenced probate pursuant to an outdated will and had herself appointed as the personal representative pursuant to the outdated will.  The decedent’s son hired my office to contest the outdated will and admit a later-dated will.  The decedent’s daughter fought the will contest and forced the son to incur substantial costs and fees.  The court agreed with the decedent’s son and entered an order revoking the initial letters testamentary issued to the daughter, admitting the later-dated will, and appointing the personal representative identified in the later-dated will.  The two beneficiaries of the estate are the decedent’s son and daughter.  The son has requested to include his costs and attorneys’ fees as an expense of administration.  The daughter has requested the same.  My initial opinion is that the daughter commenced probate pursuant to an outdated will, with full knowledge that it was outdated, and then generated substantial costs and fees to challenge the later-dated will (and lost).  Can she claim her costs and fees as a cost of administration?

Best regards,


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Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
www.fordhamlegal.com<http://www.fordhamlegal.com>


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