Estate Administration


Attorney’s Fees of Unsuccessful Will Proponent

Hope v. Baumgartner, 111 S.W.3d 775 (Tex. App.—Fort Worth 2003, no pet.).


Testator’s 1995 will was admitted to probate. Contestant asserted that the 1995 will was invalid because Testator lacked testamentary capacity and was subject to undue influence. Contestant offered Testator’s 1972 will for probate in which he was a named beneficiary. The court determined that the 1995 will was valid. Contestant was awarded $91,000 in attorney’s fees under Probate Code § 243. A dispute then arose regarding the proper classification of Contestant’s claim under Probate Code § 322, that is, is it a Class 2 claim (administration expenses) or a Class 8 claim (all other claims)? The trial court determined that it was a Class 2 claim.

Recognizing that this issue was one of first impression in Texas, the appellate court reversed holding that the claim belongs in Class 8. The claim did not fit in Class 2 because it was not incurred to preserve, safekeep, or manage the estate. Instead, Contestant’s expenses resulted in a burden to the estate and were incurred not for the estate’s benefit but rather in an attempt to achieve an outcome favorable to him personally.

Moral: The unsuccessful will contestant who obtains a judgment for attorney’s fees may have a harder time recovering those fees than anticipated because the claim has no priority and will share pro rata with other non-priority claimants if the estate is insolvent.

Note: Section 322 (Class 2) was amended by the 2003 Texas Legislature. I am not certain, however, whether this amendment would change the result in the Hope case.

It is true that the amendment adds the phrase "including fees and expenses awarded under Section 243 of the this code." However, the limitation in the prior clause still remains, that is, that the expenses be "incurred in the preservation, safekeeping, and management of the estate." The court in Hope found that the expenses of the contestant resulted "in a burden to the estate and not preservation of it." Accordingly, I think a court could still interpret the section in such a way to deny Class 2 classification.

Class 2 classification would have been more likely if the legislature had used the word "and" rather than "including." The term "and" would have eliminated the restrictions of "preservation, safekeeping, and management" with regard to § 243 fees and expenses while the term "including," in my opinion, retains those restrictions.