When contesting a Will or defending one that has been offered for probate, a party may incur significant counsel fees. One important question concerns whether the Estate or another party would be responsible for reimbursing this party.

In general, during a Will contest you are either a proponent of a Will or you are seeking its invalidation. Depending on the nature and merits of the claims which are asserted, one or both sides can be reimbursed counsel fees by the Estate.

The named executor under a Will which has been offered for probate is typically allowed to pay counsel fees for the defense of the purported Will from the assets of the Estate. This is very typical in probate litigation and is generally accepted by the Courts.

On the other hand, if you are contesting the validity of a Will that has been offered for probate, you must pay your counsel fees during the course of the litigation. At the conclusion of the litigation, however, the party that challenged the Will can apply to the Court to have their counsel fees reimbursed. Such applications may be granted provided there was a legitimate basis to challenge the Will, even if not successful, or if the challenge to the Will proved successful.

A party which has filed claims seeking to enrich the corpus of the Estate can also file an application for counsel fees with the Court provided they had a legitimate basis to bring such claims, or they did in fact enrich the Estate by prosecuting these claims on its behalf. Such claims are not necessarily challenges to a Will, but instead, can be claims against either the executor or other parties who have unlawfully converted or wasted assets which belong to the Estate. In order to bring these claims, however, this person must be a potential beneficiary under the Will.

Finally, it is possible in the context of probate litigation that the Court can actually surcharge a beneficiary under a Will, including an executor, and require them to pay the counsel fees of the party who either contested the Will or brought an action to recover estate assets. In such instances, should the court find evidence of unlawful conduct by a beneficiary or executor, the Court may punish this party by having the counsel fees rewarded to the party who brought the action from the share of the wrongful party’s interest in the estate.

In order to successfully prosecute an action in probate litigation a party may incur substantial counsel fees. As such, it is important that a party understand the possibility of an award of counsel fees in the context of such litigation. This blog merely provides some general guidance about this important issue, as this issue is not always clear cut.