In probate litigation, it is common for one or all sides to ask for reimbursement of their legal fees and the costs of prosecuting/defending the case. So, what is the law on this subject? Do the parties get reimbursed their legal fees and costs?
Under Rule 4:42-9 (a) 2 – Fund in Court. A Probate court can allow legal fees from a “fund in court” under certain circumstances. So what is a “fund in court”? A “fund in court” is when there are assets, money and property interest in the hands of a fiduciary who is a party before the court. A court may grant an award when a party, in the interest of not just himself or herself but for others, files legal action to protect this sum of money, or to seek to recover it from someone wrongfully in possession or files suit for the benefit of a class of beneficiaries. When a litigant is doing more than just advancing his or her own economic interests and there are multiple claimants to the fund, the courts have held it fair that all concerned contribute to the cost of the litigation. The threshold question is always did the litigant advance the interest of others in the fund or just their own interest. Advancing simply your own interest is not enough.
Sometimes, counsel fees can be awarded to an unsuccessful litigant(s). As long as the lawsuit was filed concerning a fairly debatable question on behalf of a Fund, the court can award legal fees to an unsuccessful party.
Another source of legal authority for payment of legal fees and costs is Rule 4:42-9 (a) 3 – Probate Action. In a probate action, if probate is refused, the court may make an allowance to be paid from the estate. If probate is granted and it “appears that the contestant had reasonable basis for contesting the validity of the will or codicil”, the court may make an allowance to both the proponent and contestant out of the estate. The Rule seems to limit itself to a challenge to probate. However, some courts have expanded its application. In Risley v. Kirman, 56 NJ 464 (1970) the court allowed fees even though the attack was not really against the will but to the establishment of a testamentary trust for the benefit of the widow. But In Re Sugarman, 191 NJ Super 385 (law 1983) held that a widow seeking her elective share was not entitled to an award from the estate.
My sense is that most probate courts will follow the literal reading of the Rule and only award fees when a reasonable challenge to the probate of the Will is involved, even though the contestant ultimately loses the case.
So there you have it, a brief discussion of the law addressing the title to this post.
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By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Probate & Estate Administration Attorney