Jones v. Coyle, 451 S.W.3d 486 (Tex. App.—Dallas 2014, no pet.).
Independent Executrix demanded that Beneficiary
return property belonging to Testatrix so that this property could be
properly administered. Beneficiary refused and the
probate court allowed Beneficiary to retain the estate property.
After obtaining a writ of mandamus to force the turnover,
Executrix asked the probate court to award her attorneys’ fees against
Beneficiary under Probate Code § 242 [recodified as Estates Code
§ 352.051]. The probate court refused and Executrix
appealed.
The appellate court affirmed holding that the
probate court lacked the discretion to hold Beneficiary responsible for
the attorneys’ fees. Instead, the estate is
responsible for the fees. The court explained that
Texas follows the “American Rule” that fee awards are not allowed unless
expressly authorized by a statute or a contract. The
court closely examined the statute and found no basis for shifting the
fees from the estate to the losing party. Although
the statute is written in the passive voice and does not state from whom
the court should order the payment of fees, the court noted that fees
are awarded regardless of whether the personal representative wins or
loses the case. Thus, it is implied that the estate
is responsible, not another party.
The court did, however, provide future litigants
with sage advice by recommending that they seek attorneys’ fees under
other statutes which authorize them such as the Texas Theft Liability
Act.
Moral: Under the Estates Code, the court
lacks the authority to award the winner’s attorneys’ fees against the
losing party even if failure to do so significantly reduces the size of
the decedent’s estate.
Note: In a trust case,
however, Property Code § 114.064 allows the court to make an award of
costs and attorneys’ fees against any party as long as the award is
“equitable and just.”