$9,000 Attorney’s Fees Award Charged Against Probate Distribution to Losing Party.
Probate is certainly an equitably driven area, as the next case shows in how one losing party was denied a fee award and another party was awarded fees to be charged against losing party’s next probate estate distribution.
In Estate of Jagar, Case No. A126750 (1st Dist., Div. 3 Mar. 28, 2011) (unpublished), young wife in an Hindu marriage got involved in probate estate battles with ex-wives and children of her deceased husband. Ex-wife obtained summary judgment based on a creditor’s claim in the estate which was contested by younger wife even though ex-wife claimed entitlement under a marital settlement agreement. Younger wife was denied her fees in the battle, while ex-wife received an award of $9,000, to be paid from younger wife’s subsequent probate distributions.
Younger v. ex in this one, with ex prevailing on appeal.
Younger’s fee request was properly denied under Probate Code section 1002, which authorizes the court to award discretionary fees to any party to probate proceedings or award fees out of the assets of the estate “as justice may require.” In this one, the trial court had no mandatory duty to award fees and nothing indicated that the opponents unreasonably contested younger wife’s marriage to the deceased.
However, ex did sustain her fee award at the appellate level. Probate Code section 9354(b) provides that the prevailing party in an action shall be awarded reasonable litigation expenses, including attorney’s fees, if the prosecution or defense of the action against the prevailing party was unreasonable. The record showed that younger wife was unreasonable in defending against ex’s creditor claim; after all, there was a marital settlement agreement and younger wife never presented any proof in opposition to ex’s summary judgment motion in her creditor claim action.