Estate Administration

Attorney’s Fees

Fees Incurred Prior to Attempt to Probate Will

Zapalac v. Cain, 39 S.W.3d 414 (Tex. App.—Houston [1st Dist.] 2001, no pet.).


Wife contested Husband’s will which favored Daughter. Over a year later, Wife amended her pleadings to include the introduction of an earlier will and to claim attorney’s fees under Probate Code § 243. The trial court determined Wife’s contest was groundless but that both Wife and Daughter acted in good faith in seeking to introduce their respective wills. Accordingly, the court awarded both Wife and Daughter attorney’s fees. Daughter appealed the court’s award of attorney’s fees to Wife.

The appellate court affirmed. Daughter argued that the evidence showed that Wife incurred the attorney’s fees prior to amending her pleadings to assert the validity of the earlier will. Daughter asserted that Probate Code § 243 permits attorney’s fees only from the point Wife first filed a pleading seeking to introduce or defend a will in probate. The court rejected this argument because Daughter lacked sufficient legal authority to support it.

Daughter also asserted that there was no evidence to support the trial court’s finding that the legal work performed prior to Wife’s filing the amended pleading was directed toward the admission of the earlier will to probate. The court rejected this argument based on testimony of Wife’s attorney that he had always planned on introducing the earlier will and that it was a strategy matter as to when to file the amended pleading. In addition, there is no “Texas case holding that a party affirmatively seeking to have a will admitted to probate is not entitled to attorney’s fees for that portion of its litigation strategy that contests a rival will.” Zapalac at 419.

Although not properly preserved for appellate review, the court explained that Daughter’s argument that Wife is not entitled to attorney’s fees because the earlier will was not admitted to probate had no merit because Probate Code § 243 does not require that an alleged will be successfully admitted to probate before the court may award attorney’s fees.

Daughter next claimed that the attorney’s fees should not come out of the estate as a whole but rather should only come out of the Wife’s portion of the estate. The court rejected this argument because Probate Code § 243 specifically provides for the attorney’s fees to come out of “the estate.” Had the legislature meant to say “out of the unsuccessful party’s portion of the estate,” it would have included this language in the statute.

Moral: A proponent of a will, even one that has a slight chance of being valid, may be entitled to attorney’s fees even if the proponent incurred the fees prior to making an attempt to probate the will. The proponent must, of course, be in good faith and act with just cause.