Saturday, March 14, 2009

Attorneys Fees in Virginia Will Contests and Estate Litigation

Will contests and other forms of estate litigation can be lengthy and expensive. One of the biggest misconceptions about civil litigation generally relates to the recovery of attorneys fees by a successful litigant. While there are exceptions, many are surprised to learn that the general rule is that attorneys fees are not recoverable in civil litigation, including will, trust, estate and fiduciary litigation.

That means that, in most cases, if you file a suit to right a wrong, recover damages or money or property that rightfully belongs to you, and you win, the attorneys fees and other litigation costs you incurred likely will not be recovered as part of a verdict in your favor.

Under what is generally called the "American rule", attorneys fees are not recoverable in litigation absent a contractual provision allowing their recovery, or a statute or law that specifically authorizes an award of attorneys fees. Courts have carved out a few narrow exceptions to this rule, including cases where actual fraud has been proved.

In will, trust and estate litigation in Virginia, there are only a few statutes that authorize recovery of attorneys fees in litigation (such as under Virginia's version of the Uniform Trust Code), and there is almost never a contract in these types of disputes. In fact, in certain situations, the executor of an estate may be able to pay his attorneys fees out of estate funds (as opposed to his personal funds) in defending himself against charges of misconduct. That's right, as a beneficiary, you may help fund the alleged wrongdoer's defense!

In most situations, if you successfully challenge a will, your attorneys fees and other litigation costs likely will not be recoverable unless the will is declared invalid based on outright fraud by someone.

From a practical standpoint, the cost of litigating a claim must be compared to the ultimate recovery that could be obtained if you win. For example, even if it means a lot to you, would you spend $10,000 to recover the antique lamp valued at $1,000 that your aunt left to you in her will, but that your mean cousin said was given to him before your aunt died? Maybe so, for sentimental reasons, or even based on principle, but you get the point.

While a family member's behavior may have you quite upset in an estate, probate or trust dispute, consult an attorney to get an idea of what litigation costs are likely to be incurred, and whether they would recoverable as part of a successful claim, before you commit to fighting the fight.