MARGARETA DEW AND NANCY M. MITCHELL, APPELLANTS,
v.
WILHELM NERRETER, GRETEL HECHTEL, ET AL., APPELLEES
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The Fifth District Court of Appeal reversed an award of attorney fees to an attorney who challenged the validity of a will on grounds of undue influence, holding that section 733.106(3), Florida Statutes does not permit attorney fees for unsuccessful will contestants even if their challenge was reasonable.
No. Section 733.106(3) permits attorney fees only when the attorney's services were necessary for or beneficial to the probate estate. Services that tend to break down, subtract from, or dissipate the estate cannot support compensation. No Florida court has authorized attorney fees under subsection (3) for an attorney representing an unsuccessful will contestant.
[1] An attorney's services must be necessary for or beneficial to the probate estate to be entitled to attorney fees under section 733.106(3), Florida Statutes.
[2] Attorney fees under section 733.106(3), Florida Statutes, are not authorized for an unsuccessful will contestant.
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Join FLexlaw to unlock all legal intelligence“In order to be entitled to attorney fees under section 733.106(3), the attorney's services must have been 'necessary for or beneficial to the probate estate.'”
Establishes the core legal standard for awarding attorney fees in probate matters.
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Join FLexlaw to unlock all legal intelligenceJohn Durst's will named Margareta Dew, his housekeeper and care giver, as sole beneficiary. Wilhelm Nerreter, represented by attorney James Files, obj…
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COBB, Judge.
The issue in this case is whether the trial court erred in granting attorney fees to the appellee, Wilhelm Nerreter, pursuant to section 733.106(3), Florida Statutes. That statute provides in part that: “any attorney who has rendered services to the estate may apply for an order awarding attorney’s fees_”
The personal representative filed a petition for testate administration to probate the last will and testament of the deceased, John Durst. In a response, the appellee, Wilhelm Nerreter, who was represented by attorney James Files, objected and claimed that the will that named Margareta Dew Durst’s housekeeper and care giver, as sole beneficiary was secured by fraud and undue influence.
After trial of the matter, the will was admitted, and the court found that there was no undue influence at the time the will was executed. Thereafter, Files filed a petition for an order awarding attorney fees pursuant to the aforesaid statute. He claimed to have acted in “good faith” in seeking denial of probate in regard to the will, and argued that he had “benefited the estate by litigating issues which raised doubts as to whether the testator had been subjected to undue influence, which litigation resulted in a judicial determination of the will’s validity.” He cited to the case of In re Estate of Lewis, 442 So. 2d 290 (Fla. 4th DCA 1983), for the proposition that the term “benefit” as used in the statute was not restricted to services that enhanced the value or increased the assets of an estate. Files sought in excess of $19,-000.00 in fees, and after hearing, the court granted the motion for attorney fees essentially on the basis that the challenge to the will was “reasonable.”
Section 733.106(3), Florida Statutes has been interpreted to permit attorney’s fees when the estate has benefited by the services of counsel. In re Gleason’s Estate, 74 So. 2d 360 (Fla.1954); In re Estate of Simon, 549 So. 2d 210 (Fla. 3d DCA 1989), rev. denied, 560 So. 2d 788 (Fla.1990). “Benefit” may refer to services that bring about an enhancement in value or an increase in value of the estate. It also refers to services that are successful in simply effectuating the testamentary intention set forth in the will. In re Estate of Lewis, 442 So. 2d 290 (Fla. 4th DCA 1983).
Thus, in order to be entitled to attorney fees under section 733.106(3), the attorney’s services must have been “necessary for or beneficial to the probate estate.” Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA), rev. denied, 534 So. 2d 401 (Fla.1988). Where the services tend to break down, subtract from or dissipate the estate (i.e., prolonged litigation and delay in administration), there can be no compensation under subsection (3). See In re Gleason’s Estate; In re Estate of Simon. No Florida court has authorized attorney’s fees under subsection (3) involving an attorney for an unsuccessful will contestant. See In re Estate of Gaspelin, 542 So. 2d 1023, 1026 (Fla. 2d DCA), rev. denied, 547 So. 2d 1209 (Fla.1989).
In the instant case, the appellees rely heavily on In re Whitehead’s Estate, 287 So. 2d 9 (Fla.1973). Whitehead involved the proponents of an earlier will unsuccessfully contesting a later will (proponents of the older will were entitled to compensation under Rule 5.090, probate and guardianship rules). Whitehead is distinguishable for the simple reason that attorney’s fees were awarded to a will proponent pursuant to Rule 5.090(e) (deleted effective July 1, 1977 as being substantive rather than procedural). Rule 5.090(c) is strikingly similar to the current section 733.106(2), and neither is applicable to the current appeal.
The award of attorney fees below is reversed.
REVERSED.
DAUKSCH and ANTOON, JJ., concur.
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Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004)…ring that the services benefit the estate. See, e.g., In re Estate of Lewis, 442 So. 2d 290, 292 (Fla. 4th DCA 1983). “ ‘Benefit’ may refer to services that bring about an enhancement in value or an increase in value of the estate.” Dew v. Nerreter, 664 So. 2d 1179, 1180 (Fla. 5th DCA 1995). As discussed infra, the trial court found that Kelly’s attorneys developed a novel claim and negotiated a $100,000 settlement offer from the hospital which undisputedly benefited the estate. The Coopers allege that the co…
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Est. OF Conway Brock v. Newman D. Brock, 695 So. 2d 714 (Fla. 1st DCA 1996)…enter its order on the petition. This provision has been construed to permit attorney’s fees when the attorney’s services were necessary for or beneficial to the probate estate. See In re Gleason’s Estate, 74 So. 2d 360 (Fla.1954); Dew v. Nerreter, 664 So. 2d 1179, 1180 (Fla. 5th DCA 1995); Franklin v. Stettin, 579 So. 2d 245, 247 (Fla. 3d DCA 1991); In re Estate of Simon, 549 So. 2d 210, 212 (Fla. 3d DCA 1989), review denied, 560 So. 2d 788 (Fla.1990). The “benefit” to the estate may include services that en…
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Hampton v. Est. OF Clifford L. Allen, 198 So. 3d 954 (Fla. 5th DCA 2016)…rvices that successfully give effect to the testamentary intention set forth in the will.” Estate of Brock, 695 So. 2d 714, 717 (Fla. 1st DCA 1996); accord Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076, 1079 (Fla. 3d DCA 2009); Dew v. Nerreter, 664 So. 2d 1179, 1180 (Fla. 5th DCA 1995); Samuels, 436 So. 2d at 1097 (Fla. 4th DCA 1983). In successfully' defending against Jordan’s specific performance action, the real estate was transferred to Hampton in accordance with Allen’s intent, as^ embodied in his w…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Gleason's Estate. Redfearn v. Brunstetter, 74 So. 2d 360 (Fla. 1954)
- In re Est. OF Goldie Simon. Bernard Gastel v. Levin & Fishman, P.A., 549 So. 2d 210 (Fla. 3d DCA 1989)
- In re Est. of Lillian B. Whitehead, 287 So. 2d 9 (Fla. 1973)
- P & H Additions, Inc. v. Acosta, 442 So. 2d 290 (Fla. 3d DCA 1983)
- In re Est. OF S. Cyrus Lewis, 442 So. 2d 290 (Fla. 4th DCA 1983)
- Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988)
- In re Est. OF Joseph Francis Gaspelin v. Gaspelin, 542 So. 2d 1023 (Fla. 2d DCA 1989)