Who Pays? Counsel Fee Shifting in Probate Matters

An appellate court in New Jersey issued an opinion this past March addressing when and how someone challenging the probate of a Will can have their attorney’s fees and costs paid by the Estate. As with many legal concepts, the answer is: sometimes.

In general, the courts in this country follow the aptly-named “American Rule,” which provides that each party to a lawsuit pays his/her/its own attorney (as opposed to the “English Rule,” under which the losing party pays). However, in New Jersey, Rule 4:42-9 lays out instances in which the responsibility for counsel fees may “shift”. One of those instances is probate matters.

In Sipko, a Bergen County case involving a family dispute over a late change to the deceased mother’s Will, the Estate was ordered to pay 80% of the fees of the challenging brother.  The trial judge (and the affirming appellate court) noted the following important facts: 1) the challenging brother was successful in defeating the change to his mother’s Will which would have disinherited him; and 2) the challenging brother was less able to bear the costs of the litigation than the Estate. 

Generally, trial courts have broad discretion as to whether and when to order the “shifting” of counsel fees in probate matters. That ultimate decision rests on the merits of the case, the ability of the parties to pay, and the ultimate success or failure of the challenge. Unfortunately for those with valid challenges but little money, it is the rare instance in which a court will award fees from an Estate before the matter is ultimately concluded.

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