Florida Estate Planning Lawyer Blog
A will or trust is one of the essential documents that every person should create. These documents dictate how a person’s assets should pass after death to a personal representative or a trustee. However, will and trusts are sometimes contested by family members when the documents are legally invalid, or someone suspects foul play was involved in the procurement of the document.
What many do not know is that a person that brings a will or trust contest in bad faith can be punished by a Florida probate court. The procedures for bad faith can be found in Florida Statute section 57.105 if a defendant or the court suspects the case was brought in bad faith.
This law recently came into question in the case of Anderson v. McDonough, 189 So. 3d 266 (2nd DCA, 2016). The original plaintiff, in this case, was William Anderson. Anderson brought an unsuccessful will contest of his mother’s will. He alleged that his mother’s will was invalid because she lacked capacity, and alternatively that she had revoked the will.
The court ordered Anderson to pay the estate, the winning side of the case, $51,897 in attorneys fees and $10,007.69 in defense costs. This is highly unusual in probate cases because both sides normally pay their own attorneys fees. The trial court awarded the fees to the defense based upon a motion citing Florida Statute section 733.106. This statute awards fees to the attorneys representing the estate, and these fees come from the estate itself.
On appeal, the motion was reversed because law or evidence did not support the motion. This statute calls for attorneys to get paid from the estate, not from the opposing party. The estate argued on appeal that the defense attorneys should be awarded fees from the opposing party because the case was brought in bad faith, and thus invoked Florida Statute 57.105.
The court denied this motion and stated that although the original plaintiff did not prevail in the Florida will contest, the facts of the case did not support the argument the plaintiff brought the lawsuit in bad faith. The defense attorneys in the case did not follow the procedures of the bad faith statute and did not provide notice to Anderson that fees were being sought.
According to the statute, a court will award attorney’s fees when the court finds the losing party or the losing party’s attorney knew or should have known that a claim or defense: (a) was not supported by the material facts necessary to establish a claim or defense; or (b) would not be supported by the application of then-existing law to those material facts.
The statute states a court can only award fees on a motion for bad faith when the court finds bad faith by a preponderance of the evidence. A preponderance of the evidence is when a court finds that it is more likely than not that bad faith occurred. This is a much lower burden of proof than the more common “beyond a reasonable doubt” standard used in criminal cases.
In a will contest, the defense attorneys should make all efforts to shorten litigation expenses when bad faith is not an issue because the attorney’s fees will come out of the decedent’s estate. This means that the longer a case goes on, the less inheritance the heirs will receive due to attorney’s fees.
If you believe that a will contest has been brought in bad faith, it is imperative that you hire a probate attorney that is familiar with Florida’s bad faith procedures. Otherwise, the fees to defend the lawsuit will come directly out of the estate and will no longer go to the beneficiary of a will or trust. For more information, contact the Jacksonville probate attorneys at The Law Office of David M. Goldman PLLC.