Probate: Beneficiary Properly Denied Section 17211 Fee Recovery

 

 

However, Cost Denial Reversed So That Lower Court Can Exercise Discretion.

 

            A cantankerous beneficiary, who sent 8,000 – 10,000 emails to trustee during the period of his service, moved to recovery Probate Code section 17211 attorney’s fees and also routine costs based on having partial success in opposing trustee/lawyer’s fees for work (resulting in a surcharge, although trustee/lawyer did garner a 1.75 multiplier).  The trial court denied both fees and costs, prompting an appeal in Amster v. Mulberg, Case No. A147574 (1^st Dist., Div. 1 April 17, 2017) (unpublished).  The appellate court affirmed the fee request denial, finding that the trustee/lawyer had reasonable cause to oppose certain petitions and had no subjective bad faith until the Uzyel test.  However, with respect to the cost denial, there was no explanation as to why the lower court did not exercise its discretion to decide whether costs were awardable to beneficiary.  Although costs were not mandatory in nature given that Probate Code section 1002 expressly provides the probate court with discretion in this area, the cost denial had to be remanded so that the court “may appropriately exercise its discretion.”