Paul v. Merrill Lynch Trust Co. of Texas, 183 S.W.3d 805 (Tex. App.—Waco 2005, no pet.).
Beneficiaries sued Executor asserting assorted breaches of duty. The
trial court denied Beneficiaries’ request for attorney’s fees under
Probate Code § 245 and the appellate court affirmed. The court reviewed
the probate court’s findings that although Executor’s conduct had
sometimes deviated from the ordinary standard of care, Executor’s acts
were not willful, malicious, or in bad faith. Thus, the probate court’s
denial of attorney’s fees was not an abuse of discretion.
Moral: A probate court’s denial of attorney fees will be hard to
overturn on appeal.
The trial court awarded Executor attorney’s fees for its defense of a
removal action brought by Beneficiaries. The appellate court found that
Executor’s defense was in good faith and thus Executor was entitled to
recover its attorney’s fees from the decedent’s estate under Probate
Code § 149C(c).
Moral: A probate court’s award of attorney’s fees will be hard to
overturn on appeal.