Fiduciary Duty Breaches Do Not Necessarily Preclude Fee Recovery Altogether.
The Fourth District, Division 1 reinforces that attorney’s fees awards in probate matters are governed by statute but guided by equitable considerations.
In Kunit v. Kingston, Case No. D056103 (4th Dist., Div. 1 Dec. 23, 2010) (unpublished), trustee was removed after having been found to have breached certain fiduciary duties in administering a trust. He then moved to recover attorney’s fees spent on trust administration work as well as the proceedings that gave rise to the fiduciary duty breach findings. The lower court awarded him 60% of requested fees ($80,095.20), disallowing the other 40% totaling $53,396.80.
Both sides appealed, with one beneficiary arguing no fees should have been awarded and trustee arguing that 60% was too low an awarded percentage.
Affirmed, was the disposition by the appellate court. Although a trustee generally may receive reimbursement for attorney’s fees and other expenses incurred for the benefit of the trust (Prob. Code, §§ 15684, 16243, 16247), the probate court does have the power to adjust fee requests based on equitable considerations. Here, the lower court properly disallowed fees incurred in the fiduciary duty-oriented litigation but found it was too inequitable to deny the 60% attributable to normal trust administration efforts. Trustee argued that the trial court must cite to specific evidence/facts when reducing a fee request, but he produced no authority to back up this argument.
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