In a will contest, can you recover your attorney’s fees if they were reasonable and necessary?

Texas law allows you to recover your attorney’s fees if you offer a will for probate even if the will is rejected. As long as the jury finds that you acted in good faith and with just cause, you may collect your attorney’s fees. Estates Code §352.052.

In a recent will contest, the proponent offered a 2003 will for probate. The contestants contested the 2003 will and offered an older will for probate. The jury rejected the 2003 will and the older will offered by the contestants was admitted to probate. They jury found that the testator lacked testamentary capacity when he executed the 2003 will offered by the proponent.

The jury also found that the proponent had incurred $600,000.00 in reasonable and necessary attorney’s fees in unsuccessfully offering the 2003 will but answered “no” to the question had she offered the will in good faith and with just cause. The court held that the evidence supported the jury’s answer. The proponent then claimed that there was a conflict between the jury’s finding that the fees were reasonable and necessary and their finding that the proponent did not act in good faith and with just cause. The court said that proponent waived this issue because she did not make her objection about the conflict before the jury was discharged, which was required. No. 04-09-00777-CV.

While this case deals with legal technicalities, it does point out that you can get reimbursed for your reasonable and necessary attorney’s fees even if you lose but only if the jury finds that you acted in good faith and with just cause.