Will Contests in Tennessee: Who Pays Attorneys’ Fees?

If you hire a will contest lawyer in Tennessee to defend a will which has been offered for probate and which is being challenged as invalid, or if you hire a lawyer to try to invalidate a will which has been offered for probate, will the attorneys’ fees of your attorney be your individual responsibility? Or can they be paid, or reimbursed to you, from the assets of the deceased (from the estate)? If you successfully defend a will contest, is the non-prevailing party who challenged the will required to reimburse you or the estate for the fees incurred to defend the will?

The answer to the later question is straightforward: One who is unsuccessful in a will contest action cannot, except in limited and unlikely circumstances, be required to pay the prevailing party’s attorneys’ fees. The answers to the former two questions are a little less straightforward.

Let’s assume a fairly typical will contest scenario in considering those questions:

• Mother executes a will in 2000 which leaves her assets equally to her three daughters and to her son Bob
• Daughter Alice is named executrix under the 2000 Will
• Mother executes another will in 2013
• The 2013 Will leaves 90% of Mother’s assets to Bob, and the remaining 10% to Bob’s three sisters, including Alice
• Mother passes away
• Bob offers the 2013 Will for probate
• Bob is named as executor in the 2013 Will and is appointed executor by the Probate Court
• Alice, for her and her sisters, enters into an agreement to pay a probate litigation law firm to file a will contest case to challenge the 2013 Will
• Alice’s lawyers challenge the 2013 Will on the grounds that it was the result of the undue influence and fraud of Bob
• The jury determines that Bob procured the 2013 Will by fraud and undue influence and it is set aside
• Alice then offers the 2000 Will for probate and files a claim in that probate proceeding requesting that the attorneys’ fees paid by her and her sisters in the will contest case be paid from the assets of Mother’s estate (If this claim is approved, the effect will be to cause Bob to have to share in the attorneys’ fees spent in the will contest action because all beneficiaries’ distributions will be reduced by paid expenses)

• Bob boldly files a claim in the probate proceeding for the 2000 Will requesting that he be reimbursed, from the assets of Mother’s estate, the $100,000 he paid his lawyer to defend the 2013 Will in the will contest action
Bob’s claim for the attorneys’ fees for which he paid defending the 2013 Will, which he was found to have procured by undue influence and fraud, will almost certainly be denied. See, e.g., Smith v. Haire; Bridgeford v. Williams. Alice’s claim that her Mother’s estate be required to reimburse Alice and her sisters for the money spent for attorneys’ fees by them will almost certainly be granted.

The pivotal question in will contest cases in Tennessee where a claim for attorneys’ fees is made by an executor or executrix is: In spending money for attorneys’ fees, was the executor or executrix acting in good faith? See, e.g., Smith v. Haire; Bridgeford v. Williams; Taylor v. Self; and In re Estate of Bean. Where an executor, like Bob, offers a will for probate which is found to have been procured by him by fraud or undue influence, he cannot have acted in good faith in defending the validity of that will in a will contest. Thus, he is not entitled to be reimbursed for attorneys’ fees.

For will contests in Tennessee which are based on a challenge that the will is invalid for some reason other than fraud or undue influence, the issue of attorneys’ fees might be resolved differently. For example, assume all of the same facts as set forth above except assume Alice and her sisters did not challenge the 2013 Will on the basis of fraud or undue influence, but on the basis that Mother lacked the mental capacity to make the 2013 will. And assume that the jury set aside the 2013 Will on the basis that Mother lacked testamentary capacity. The question of whether Bob acted in good faith in defending the 2013 Will, under that altered factual scenario, could be resolved in favor of Bob (particularly if Bob had no involvement with Mother obtaining and executing the 2013 Will).

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