Who Pays Attorney’s Fees in a Will Contest in New York City

Who pays attorney’s fees in a will contest? The person who hired the attorney, unless the court rules otherwise.

Will contests in New York follow the general American rule where each party typically pays for his own fees, regardless of who wins. However, there may be exceptions.

The Basic Rule – Each Party Pays For His Own Attorney

Both parties need lawyers in a will contest. Attorneys often get paid retainers upfront and then bill hourly. Clients foot the bill initially. But the estate may reimburse fees later, depending on the outcome of the case and the judge’s ruling.

• If there’s a settlement, the estate pays the executor’s fees as an administrative cost. The contesting party pays for his own legal fees. 
• If the contest succeeds, the contesting party may be able to take out his attorney fees from beneficiaries who benefit from the successful will contest. But the executor’s attorney will have already be paid by then, and it would be impossible to get that money back.
• If the contest fails, the parties can agree what happens to the fees. Typically, the estate pays the executor’s fees even if the case settles.

Exceptions to the Rule

The contesting party could pay all the legal fees (including the executor’s) if:

• The judge deems the contest frivolous or in bad faith.
• The will has a no-contest clause which triggers forfeiture of inheritance in case the contest is unsuccessful.

The standard rule is whoever hires the will contest attorney pays their fees. But there are exceptions. To get an exception, you would have to apply for it with the Surrogate’s Court judge and get the judge to rule in your favor.

If you are involved in a will contest, we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. You can call us at 212-233-1233 or send us an email at [email protected].

The American Rule and Why It Matters

New York, like most American jurisdictions, follows the "American Rule" on attorney's fees: each party generally pays its own fees, win or lose. This is different from the "English Rule" followed in the United Kingdom and many other countries, where the losing party pays the prevailing party's fees. The American Rule is meant to keep courthouse doors open to litigants who might be deterred by the prospect of paying the other side's fees if they lose, but it also means that even a successful will contest typically costs the contesting party real money out of pocket.

The Surrogate's Court has some discretion to deviate from the American Rule in specific situations, and several common scenarios in will contests produce departures from the strict default. Understanding these scenarios is important for anyone weighing whether to bring or defend a contest.

How Executors' Fees Are Paid

The executor's legal fees are different from the contesting party's legal fees. The executor (or proponent) is acting on behalf of the estate, and the estate generally pays the executor's reasonable legal fees as a cost of administration. This means that even when the contestant pays for their own attorney, the estate is paying for the proponent's attorney out of estate assets — which the contestant has an indirect interest in.

The reasonableness of the executor's legal fees is reviewed by the court. Fees that are excessive, that relate to work that primarily benefited the executor personally rather than the estate, or that were incurred in litigation the executor essentially caused, can be reduced or disallowed. Beneficiaries can object to the fees as part of the accounting proceeding.

When the Contestant May Recover Fees

The classic exception that benefits a successful contestant is the "common fund" doctrine. When a contest produces a benefit to a class of beneficiaries — typically by invalidating a will and causing distribution under a prior will or by intestacy — the contestant who created that benefit can sometimes recover fees from the fund created. The theory is that the contestant did the work that benefited the other beneficiaries, and the other beneficiaries should not be free riders.

Common fund recoveries are not automatic. The contestant has to petition the court, show the benefit produced, show that the fees are reasonable, and demonstrate that the fees should fairly be charged against the fund. The court's discretion is broad and is exercised in light of the totality of the case.

In Terrorem Clauses

An in terrorem clause (also called a no-contest clause) in a will provides that any beneficiary who contests the will forfeits their inheritance under the will. These clauses are enforced by New York courts, though with important exceptions. EPTL § 3-3.5 provides that certain actions do not trigger the clause, including: certain limited discovery to investigate facts that might support a contest, an objection that the will is forged, and conduct of an infant or incompetent through a guardian ad litem.

The risk for a beneficiary who is also contesting the will is significant. If the contest fails and the clause is enforced, the beneficiary loses everything they would have received under the will. That includes the fees paid to their attorney, which become a pure loss with no offset. Anyone considering a will contest who is also a named beneficiary should weigh this risk carefully.

Sanctions and Bad-Faith Litigation

New York courts can sanction parties and attorneys who pursue litigation in bad faith. Under 22 NYCRR § 130-1.1, the court can order one party to pay the other's reasonable attorney's fees and costs when the conduct in the litigation is frivolous. Frivolousness includes claims with no reasonable factual or legal basis, claims pursued for improper purposes like harassment, and false statements to the court.

Sanctions are not common in will contests but they do happen. A contestant who pursues an obviously baseless contest, or a proponent who refuses to engage in reasonable settlement discussions despite an obvious problem with the will, can expose themselves to sanctions.

Settlement and Fee Negotiation

Most will contests settle rather than going to trial. Settlement creates an opportunity to negotiate fees as part of the overall resolution. Common settlement structures include:

• The contestant receives a stated dollar amount from the estate in exchange for withdrawing the objections. The contestant's attorney is paid out of that amount.
• The estate is divided according to a renegotiated plan, with each beneficiary's share adjusted to reflect the settlement. Each side pays its own attorney from its allocated share.
• The estate pays a portion of the contestant's attorney's fees as part of the settlement, in addition to settling the substantive issues.
• Specific assets are allocated to specific parties, with no cash payment but with the new allocation reflecting the settlement.

Settlement fee discussions are part of the negotiation. We approach them with a clear sense of what is reasonable in light of the strength of the case, the work performed, and the outcome being achieved for the client.

Fee Arrangements for Will Contests

Will contest cases can be handled on several different fee structures:

Hourly fees. The traditional structure. The client pays the attorney's hourly rate for time spent. Predictable on a per-hour basis but the total cost depends on how much work the case requires.

Flat fee for defined phases. Some attorneys charge a flat fee to handle the initial 1404 examinations, with separate flat fees for objections, discovery, and trial if the case proceeds. This provides cost predictability while letting the client see what the next phase will cost before committing.

Contingency fees. Some will contest cases — particularly those where the contestant stands to recover a substantial inheritance if successful — can be handled on a contingency. The attorney is paid a percentage of the recovery rather than billed for time. This structure aligns the attorney's interest with the client's and reduces upfront cost, but the percentage paid can exceed what the hourly fees would have been.

Hybrid arrangements. Some cases use a reduced hourly rate combined with a contingency percentage on the recovery. This provides some current income to the attorney while preserving the alignment with the client's outcome.

Cost-Benefit Analysis

Before filing or defending a will contest, both sides should think through the realistic economics. What is the value of what is at stake? What is the realistic probability of winning? What will the legal fees be on each path forward — full litigation, early settlement, dismissal? Is there a no-contest clause that could wipe out the inheritance if the case loses?

An honest cost-benefit analysis sometimes shows that a contest is not worth pursuing, even when the client believes the will is invalid. Other times it shows that the contest is very much worth the investment. We do not pretend the answer is always the same. We tell each client the realistic picture for their case.