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.