Inheritance disputes are often motivated by principle and emotion. No matter how right a claimant thinks they are, the style and approach to their case may create financial risk in paying another’s attorney fees and/or depleting any inheritance the claimant otherwise would receive. Choosing the right attorney will help you navigate this risk.
Inheritance claim litigation often involve claims to invalidate documents or transactions through declaratory judgment claims as well as the pursuit of breach of fiduciary duty claims. Ohio follows the American rule which generally provides that in litigation each party bears his or her own attorney fees. However, in certain circumstances, or in any dispute involving a trust, Ohio has enacted statutes that authorize a court to allocate attorney fees based on equity.
Ohio’s Declaratory Judgment statute allows a trial court to award attorney fees to a “fiduciary, beneficiary, or other interested party” to be paid “out of the trust property, the estate property, or other property that is the subject of the fiduciary relationship * * * in accordance with equitable principles” if the attorney fees are for services “beneficial to the trust or estate.” O.R.C. 2721.16(A)(1)(c). Similarly, the Ohio Trust Code provides that in trust litigation the trial court “as justice and equity may require, may award costs, expenses and reasonable attorney fees” to any party “to be paid by another party, from the Trust that is the subject of the controversy or from a party’s interest that is the subject of the controversy.” O.R.C. 5810.04.
Both of these statutes rely on equitable principles, which in simple terms means principles of “fairness”. These statutes invite a court to consider the unique facts and circumstances of each case to determine whether a claimant should have their fees paid by an estate, gross trust, trust share or by an adverse party. Conversely, the same statutes also invite the court to determine whether a claimant’s case and litigation justify the Court to require the claimant to pay their own attorney fees and/or the fees of other parties. The application of these statutory provisions in Estate and Trust litigation could be beneficial to a claimant, but also could be a landmine causing a claimant to unexpectedly pay another party’s attorney fees. This risk could have the effect of reducing or eliminating financial benefit the claimant otherwise would receive through an inheritance.
For example, in a recent case Reminger represented two sisters who requested a probate court declare them beneficiaries of a Last Will and Testament (“Will”) with their brother claiming he was the only beneficiary under the language of the Will. Even after fact discovery revealed the attorney that drafted the Will believed the sisters were equal beneficiaries the brother continued aggressively fighting. The trial court agreed with our clients that they were equal beneficiaries and ordered our clients’ attorney fees be paid by the gross probate estate and declining the brother’s request that his fees be paid from the estate. In effect, the disgruntled brother’s approach to litigation gave the court a basis to cause him to pay 1/3 of his sisters’ attorney fees plus 100% of his own attorney’s fees. These expenses borne by the brother practically eliminated any net benefit he would inherit through the probate estate.
Attorneys in Reminger’s Estate and Trust Litigation Group have more than 100 years of collective experience litigating inheritance claim disputes. Contact us today to utilize our counsel to navigate these types of disputes so that you can make informed, strategic decisions on how to approach your litigation.
- Jessica Forrest Appointed to Ohio State Bar Association Estate Planning, Trust & Probate Section Council
- Reminger to Present at Marvin R. Pliskin Advanced Probate and Estate Planning Institute
- New Rules Direct Guardians to Encourage Visitation with the Ward
- Ohio’s Rule Changes Focus on Efiling and Remote Practices
- The Person Behind the Will: The Contest of the Will of Michael Posey
- In Brief: Ohio Estate & Probate Litigation Updates May 2022
- In Brief: Ohio Estate & Probate Litigation Updates April 2022
- In Brief: Ohio Estate & Probate Litigation Updates March 2022
- Shana DeMooy Joins Reminger's Estate and Probate Litigation Team
- Adam Fried and Timothy Gallagher Obtain Jury Verdict in Favor of Client in Undue Influence Will Contest Case