Gotta Have a Basis, Or Else Fee Recovery is Toast.
[Above: April 1942. Ann Rosener, photographer. Library of Congress.]
In Estate of Brown, Case No. G043780 (4th Dist., Div. 3 Oct. 4, 2011) (unpublished), a lower court awarded $38,000 in attorney’s fees to respondents in a bitter probate petition battle in which appellant was apparently deemed to be the executor under a holographic will pursuant to resulting or constructive trust theories. Appellant appealed from the adverse award, claiming there was no entitlement basis for the award.
Appellant was vindicated on appeal.
You knew that this one was not going well for respondents when the Court of Appeal, through author Acting Presiding Justice Rylaarsdam, opened early on by saying that the American Rule (each side bears their own costs) was the rule (also in probate proceedings), with a contract or statute having to dictate otherwise. Well, the general rule prevailed in this particular case.
The first theory was that Probate Code sections 9601 and 9603 gave rise to fee exposure. However, appellant was not a court-appointed personal representative of the estate, and there was nothing in these statutes allowing for recovery of attorney’s fees or litigation expenses. No other equitable “exceptional circumstances” applied akin to those at play in the common fund area, because respondents admittedly were seeking recovery from appellant personally.
The second theory was that Probate Code sections 16400 et seq. somehow triggered respondents’ ability to recoup fees. However, these provisions only applied to express trusts, with the Probate Code expressly not applying to resulting trusts or constructive trusts (unless the constructive trusts are impressed under a judgment that says they are governed by express trust rules)–neither the case here. Because none of the cited statutes have fee-shifting provisions or did not apply in the first instance, the award in respondents’ favor had to be reversed according to the appellate court.