Counsel Fees When Challenging a Will

If you are seeking to contest a Will, a major consideration will be how you will pay for the counsel fees to engage in this process. In general, you should assume at the beginning of the litigation that you will be personally responsible for paying any counsel fees that are incurred. There may be relief, however, to a person who seeks to challenge a decedent’s last will and testament. That potential relief is provided by NJ Court Rule 4:42-9. That court Rule provides as follows in pertinent part:

4:42-9. Attorney’s Fees

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except

(3) In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate. In a guardianship action, the court may allow a fee in accordance with R. 4:86-4(e) to the attorney for the party seeking guardianship, counsel appointed to represent the alleged incapacitated person, and the guardian ad litem.

In essence, this Rule gives any contestant to a last will and testament two opportunities to have their counsel fees reimbursed by the estate. In the first instance, if a party seeking to challenge a Will succeeds in invalidating the instrument then the court will award counsel fees to be paid by the estate to the party contesting the decedent’s Will. The second avenue involves a potential award of counsel fees even if the party who is challenging the decedent’s last will and testament is not successful, but it is demonstrated that the contestant had reasonable cause to contest the validity of the Will or Codicil. While it is clear that a party who succeeds in challenging a decedent’s Will is automatically entitled to counsel fees, it is less certain when a party fails to succeed in invalidating a Will whether they are entitled to counsel fees. This decision is ultimately within the court’s discretion, and thus, would essentially be non- appealable due to the nature of the court’s discretion. If counsel fees are awarded, however, it does not mean that the contestant would get all of their counsel fees paid or reimbursed.

Be forewarned, even when a court grants a motion awarding fees to the party contesting a Will, it does not mean that all counsel fees will be awarded. Instead, the court will conduct an analysis as to what it determines to be “reasonable” counsel fees. Once the court conducts that analysis, an Order will be entered awarding counsel fees in the amount determined by the court. Unfortunately, this can leave a contestant somewhat out in the cold if they paid more counsel fees than the court ultimately awards. Unfortunately, that is a risk when a party seeks the reimbursement of counsel fees and costs. For these reasons, it is critically important that any potential contestant consider this issue prior to commencing a Will contest.