William Anderson v. Laura McDonough, Personal Representative of the Estate of Helen E. Anderson (41 Fla.L.Weekly D884b), April 15, 2016
In a recent opinion, the Second District Court of Appeals held that the personal representative of an estate was not entitled to a personal judgment for attorney’s fees against an unsuccessful will contestant. The trial court entered an order awarding the estate $51,897 in attorney’s fees against William Anderson for his unsuccessful challenge to his mother’s Last Will & Testament. The Second DCA reversed the award because it was unsupported by the law and by the facts of the case.
Anderson and his brothers were excluded from their mother’s will, which left everything to their aunt. Anderson brought a will contest but the court upheld the will as valid. The estate then filed a motion for attorney’s fees against Anderson pursuant to Fla. Stat. s. 733.106, which provides that: “(1) In all probate proceedings, costs may be awarded as in chancery actions; (2) A person nominated as personal representative, or any proponent of a will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive costs and attorney fees from the estate even though probate is denied or revoked; (3) Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate; and (4) If costs and attorney fees are to be paid from the estate under this section, s. 733.6171(4), s. 736.1005, or s. 736.1006, the court, in its discretion, may direct from what part of the estate they shall be paid.” The statute authorizes an award of attorney’s fees to be paid from the estate and even from a certain portion of the estate, including as a surcharge against a beneficiary’s share of the estate; however, the statute does not authorize imposition of a fee award beyond what that person is entitled to receive from the estate. In other words, the statute does not authorize a personal judgment. Anderson was excluded from the estate by the will the court held was valid so he had no share to surcharge and the personal representative was left with no recourse to recover the fees expended on the challenge to the will.
The estate argued that a personal judgment was warranted because Anderson had acted in bad faith, but the Second DCA rejected the argument for several reasons. First, the estate had not properly invoked Florida’s fee-shifting statute (Fla. Stat. s. 57.105). The estate argued it did not need to comply with the requirements of 57.105 because it was seeking fees under the “inequitable conduct doctrine” instead. The Second DCA observed that the inequitable conduct doctrine applies only in “those extreme cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. (citing Nedd v Gary, 35 So. 3d 1028, 1030 (Fla. 4th DCA 2010) (quoting Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998))The court concluded that the inequitable conduct doctrine, as an alternative basis for a personal judgment for fees against Anderson, was not supported by the evidence in the case because the challenge was not brought in bad faith.