Counsel Fees in Probate Litigation, Even if Unsuccessful
In previous blogs, I have discussed an award of counsel fees to a plaintiff who successfully contested a last will and testament. In a recent appellant division decision, the appellate court reviewed an award of counsel fees to a plaintiff who challenged a last will and testament, however, whose challenge was not successful.
In the court’s July 2021 decision, the appellate court upheld an award of counsel fees incurred by a plaintiff in contesting a last will and testament, even though his challenge ultimately proved unsuccessful. In affirming the trial court’s decision, the appellate division explained that plaintiff had reasonable cause to file the complaint to contest the last will and testament, and further, there was no evidence of bad faith by plaintiff in bringing his claim. As such, the appellate court confirmed that the award of counsel fees to plaintiff was just and equitable. This appellate division decision affirmed the case law on this issue that even if not successful a contestant to a last will and testament may be able to recover counsel fees provided there was a reasonable basis for bringing the action, and further, there is no evidence of bad faith or other improper motive. This issue is something that should always be considered when you are either seeking to contest a will, or you are an executor defending a will. These potential fees should always be considered by both sides, as there is no guarantee that the fees will be paid, or that they will be denied by the court.