Blogs from June, 2009


Will Contest Lawyers Awarded Fees From Proponent of Forged Last Will and Testament

Generally, each party who brings or defends a lawsuit is responsible for their own attorney's fees, regardless of who wins or loses, unless there is a governing statute or contract that specifies from whom or where the fees should be paid.  This is generally true in the probate arena as well, that persons who hire lawyers to bring a contest or lawsuit against a last will and testament are responsible for their own fees, even if they win unless certain special circumstances are shown.  One of these is the idea that the services rendered by the lawyer brought about a “benefit” to the estate.  I have previously written about this concept in my blog. 

Another legal concept that permits the payment of lawyers fees from the losing party is the idea of the inequitable conduct doctrine.  This concept was recently described in great detail by the Florida Fifth District Court of Appeals in Hoegh v. Estate of Johnson, 985 So.2d 1185 (Fla. 5thDCA 2008).  This case originated in Orange County Probate Court in front of the Honorable Judge Kirkwood.  The Estate of Allie Mae Johnson was proceeding nicely when Gloria Hoegh petitioned to have a Last Will and Testament admitted to probate in the Estate.  After a long fight in probate court, Judge Kirkwood denied her Petition to Admit Last Will and Testament to Probate. In its order, Judge Kirkwood found that the purported will which Hoegh filed with the court and which Hoegh alleged to be the last will and testament of the decedent was a forgery and that Hoegh had participated in the creation of the forgery.

Ms. Hoegh appealed the case to the appellate circuit and even to the Supreme Court of Florida to no avail.  When the case returned to the Fifth District Court of Appeals, it found that Judge Kirkwood’s findings were clearly supported by substantial competent evidence. The appellate court also found that the estate was entitled to recover its reasonable appellate attorney’s fees through the application of the inequitable conduct doctrine.

According to the Fifth District, the inequitable conduct doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.  The Court opined that Hough’s attempt to perpetrate a fraud on the court by knowingly seeking to have a forged last will and testament admitted to probate constituted egregious conduct. The court further observed and found that Hoegh acted in bad faith in appealing the trial court’s order because her appeal failed to raise any justiciable issue of law.

The fees should be calculated, according to the Fifth District, as to what is reasonable.  The Court felt that a fee of $275 per hour was reasonable under the circumstances.

This case serves as a reminder of one of the narrow exceptions to the general rule that a party cannot recover his or her fees from the other party.  Sometimes, when the party whose conduct causes the litigation in the probate arena loses, the winner can ask the court to award attorneys fees.

Most Recent Posts from June, 2009