Probate Code Section 9354(c) Was Proper Fee Entitlement Authority, With Daughter’s Petition Found To Be Objectively Unreasonable By Lower Court.
Do not think for a minute that probate proceedings cannot be time consuming, emotionally exhausting, or financially draining. Adverse fee awards can be substantial and, when there are bases for them and well-reasoned decisions by the probate court in support, they will be affirmed on appeal. Estate of Eng, Case Nos. B255829/B258567 (2d Dist., Div. 1 Jan. 29, 2016) (unpublished) illustrates this point in dramatic fashion.
Daughter Amelia brought a petition for redress under Probate Code sections 21700 and 580(c) based on her probate position, stemming from a dispute with convoluted facts, that a certain contract signed by father determined whether a will had been revoked or not. The petition for redress was based on facts which were drawn from a prior rejected creditor’s claim filed by Amelia. After a 16-day trial, testimony was adduced that Amelia was far from sure that the contract she was basing her claim on did indeed govern or that her father did intend it to revoke a prior will. The lower court found she did not prevail on her petition, awarding the other siblings and administrator fees totaling $540,418 under Probate Code section 9354(c), a fee-shifting section allow a probate judge to award a prevailing party on a rejected creditor’s claim litigation expenses (including attorney’s fees) if the judge determines that the prosecution or defense of the action was unreasonable.
The appellate court found that the probate judge got it right. Section 9354(c) was properly utilized, because Amelia’s petition for redress was based on the same facts as the rejected creditor’s claim. Also, the probate judge correctly found that an objective reasonableness standard applied, utilizing Code of Civil Procedure section 1038 by analogy—an analogy Amelia agreed with and with substantial evidence showing that the action was unreasonably prosecuted. To her likely horror, the large fee award was sustained on appeal.
Justice Johnson authored the 3-0 panel decision in Estate of Eng.