Will Contests

Attorney’s Fees of Losing Contestant

Ray v. McFarland, 97 S.W.3d 728 (Tex. App.—Fort Worth 2003, no pet.).


Beneficiary probated Will Two. Contestant attempted to probate Will One alleging that Will Two was invalid because of lack of capacity or undue influence. The jury determined that Testatrix had capacity and was not unduly influenced. In addition, the jury determined that Contestant’s attempt to probate Will One was not done in good faith and with just cause. Consequently, Contestant would not be entitled to attorney’s fees under Probate Code § 243. The court, however, granted Contestant’s request for a judgment notwithstanding the verdict finding that Contestant did act in good faith and with just cause. Accordingly, the court permitted Contestant to recover attorney’s fees from the estate. Beneficiary appealed.

The appellate court reversed. The court reviewed the evidence and found that it was sufficient to support the jury’s finding that Contestant’s actions were not in good faith. For example, Contestant had inappropriately taken Testatrix's money and other property by abusing a power of attorney Testatrix had given Contestant. Accordingly, the trial court erred when it granted a judgment n.o.v.

Moral: A contestant will have a difficult time setting aside a jury finding that the contest was not brought in good faith and with just cause.