Counsel Fee Award When Contesting A Will
Monday, November 22, 2021

In general, the party tasked with defending a decedent’s Will during a Will contest, which is typically the executor, is entitled to the reimbursement of counsel fees that they incur in defending the Will on behalf of the Estate. At times, however, a party who has filed an action to contest a Last Will and Testament may also be entitled to an award of counsel fees provided there was a reasonable and legitimate basis to contest the decedent’s Last Will and Testament. In a recent appellate division case, the court affirmed an award of counsel fees to the contestant of a decedent’s Will for these very reasons.

In this matter, the defendant executor had been awarded counsel fees by the court, as the defendant was responsible for defending the decedent’s Last Will and Testament against the challenges levied by the plaintiff. In addition, the trial court also awarded counsel fees to the plaintiff, as it found that plaintiff’s challenge to the decedent’s Will was made in good faith and was reasonable. Moreover, the court found that plaintiff’s fees for which it sought reimbursement were fair and reasonable. In response, the defendant argued that the award of counsel fees was contrary to the applicable New Jersey court rules, and therefore, objected to the award. The appellate division reviewed the applicable rule of professional conduct, RPC 1.5(a), and concluded that the plaintiff had reasonable cause to contest the validity of the decedent’s Will, and moreover, that the fees the plaintiff sought were reasonable. As such, the appellate division concluded that the trial court correctly awarded counsel fees to the contestant of the decedent’s Will.

This appellate division decision reaffirmed a well-accepted standard as to an award of counsel fees in the context of probate litigation. When you are either taxed with defending a Last Will and Testament or intending to contest a Last Will and Testament, this factor should be considered when deciding whether settlement makes sense. Since there is no guarantee to either side that the counsel fees will be awarded, it is an issue that should be considered in the context of any settlement discussions before trial.


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