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litigationattorneystatuteappealwill
litigationattorneystatuteappealprobatewillgood faith

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In re Estate of Lewis, 442 So.2d 290

Facts

Dr. Rosch, a beneficiary under the decedent's will, faced a challenge from Mrs. Lewis, the personal representative, who sought to revoke the devise on grounds of undue influence. Following substantial litigation, Mrs. Lewis voluntarily dismissed her suit, leading Dr. Rosch to appeal the denial of his claim for attorney's fees under F.S. § 733.106 (1979). The court found that Dr. Rosch's attorney's services were beneficial to the estate by upholding the testamentary intention of the will.

Dr. Rosch, a beneficiary under the terms of the decedent's will, appeals from the denial of his claim for attorney's fees, which claim was based upon the provisions of F.S. § 733.106 (1979) . We reverse. Mrs. Lewis, as personal representative, petitioned to revoke the devise to Dr. Rosch on the grounds of undue influence. Substantial litigation followed to include a visit to this court. In Re Estate of Lewis, 411 So.2d 368 (Fla. 4th DCA 1982) .

Issue

Did the services rendered by Dr. Rosch's attorney benefit the estate sufficiently to warrant an award of attorney's fees under F.S. § 733.106?

Did the services rendered by Dr. Rosch's attorney benefit the estate sufficiently to warrant an award of attorney's fees under F.S. § 733.106?

Rule

The statute F.S. § 733.106 allows for attorney's fees to be awarded if the services rendered benefit the estate, which includes effectuating the testamentary intention set forth in the will.

The applicable statute here is F.S. 733.106(2) and (3) : “(2) A person nominated as personal representative of the last known will, or any proponent of the will if the person so nominated does not act within a reasonable time, is in good faith justified in offering the will in due form for probate, shall receive his costs and attorney fees out of the estate even though he is unsuccessful. (3) Any attorney who has rendered services to an estate may apply for an order awarding attorney fees, and after informal notice to the personal representative and all persons bearing the impact of the payment the court shall enter its order on the petition.”

Analysis

The court determined that the attorney's services were beneficial to the estate because they successfully resisted the personal representative's attack on the will, thereby effectuating the testamentary intention. The court emphasized that the voluntary dismissal of the suit did not negate the benefit conferred by the attorney's defense of the will.

In our opinion, the services rendered by Dr. Rosch's attorney benefitted the estate in that by successfully resisting Mrs. Lewis' attack upon the will, the testamentary intention set forth in the will was effectuated. We do not think that it matters that the suit was voluntarily dismissed as opposed to an adjudication upon the merits. It can be realistically postured, as an instance, that if Dr. Rosch did not defend the will, Mrs. Lewis would have obtained a default and thereby frustrated the decedent's testamentary intention.

Conclusion

The court reversed the lower court's decision and remanded the case with instructions to grant Dr. Rosch's claim for attorney's fees.

We reverse and remand with instructions to grant Dr. Rosch's claim for attorney's fees per F.S. § 733.106 (1979).

Who won?

Dr. Rosch prevailed in the case because the court found that his attorney's services benefited the estate by upholding the will against an improper attack.

We feel that indeed Dr. Rosch was the prevailing party in this will contest upon the same rationale as was expressed in Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976) where there was a voluntary dismissal of a mechanic's lien action which entitled the prevailing party to recover costs and attorney's fees as provided by statute.

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