When a loved one dies and you learn that you have not been included in the will, you face a difficult decision: should I contest the will, and if I do contest the will, who pays the attorney’s fees in a will contest?
The American rule on attorney’s fees is that each party pays for his or her own legal fees, regardless of who wins the case. This rule was established to ensure that plaintiffs would not be discouraged from filing a case because they might end up paying for the legal fees of both sides in the event that they are unsuccessful in litigation.
The same American rule applies when objecting to the will: each party bears his own attorney’s fees in a will contest. The heir who contests the will pays for his own attorney’s fees, while the executor who defends the will may apply to the court for the payment of his attorney’s fees by the estate. If the heir is also a beneficiary in the will, the executor may request the court to take the payment of the attorney’s fees from the beneficiary’s share in the will.
For example, if A, B, and C will receive $5,000 each from the will, but if there was no will, A, B, and C would receive $25,000 instead under New York laws of intestacy, if A, alone, contests the will and is unsuccessful, the executor can ask the court to get the payment of the executor’s attorney’s fees in defending the will from A’s share of $5,000. This rule has been established so that the shares of the non-objecting beneficiaries, B and C, would not be diminished due to A’s actions.
If the heir or beneficiary, however, is successful in contesting the will, the attorney’s fees of the objecting heir or beneficiary may be taken from the share of the beneficiaries who will benefit from the successful will contest.
In the same example above, if A, alone, files a will contest and becomes successful, A’s attorney’s fees will be paid from the inheritance shares of A, B, and C, because all three children benefited from the successful will contest since they will all have an increased inheritance share under New York laws of intestacy.
In a successful will contest, one can argue that the estate has been benefited because the estate has saved itself from having to execute a will that is not genuine or a will that has not been duly executed.
Theoretically, if a court determines that objections to a will are frivolous, completely baseless, defective, and devoid of any factual basis, the estate may be able to surcharge attorney’s fees spend for successfully defeating the frivolous claim, but the executor would probably need to get a judge to approve a judicial accounting to allow for such an offset, and we have not seen this being done in practice.
Objecting to a will is a major decision, not only because of the havoc it can do to family relations, but also the large legal fees that may be incurred in filing a will contest. If you are considering filing a will contest and are weighing the pros and cons, you may consider filing first a SCPA 1404 discovery before challenging a will. The testator’s estate is usually responsible for some costs of SCPA 1404 examinations (excluding attorney’s fees).
If you need representation in a will contest, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.
