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In re Estate of Lane
Citations: 562 So. 2d 352; 1990 Fla. App. LEXIS 2806; 1990 WL 49858Docket: No. 88-2075
Court: District Court of Appeal of Florida; April 25, 1990; Florida; State Appellate Court
The case marks its third appearance before the Fourth District, involving appellants who are specific beneficiaries under Ruth Lane's Last Will from February 5, 1982. Herbert Weber, the personal representative of the will, is the appellee. The appellants contest the lower court's order that assessed attorneys’ fees against their shares in the estate. The court affirms in part but reverses the fee assessment against individual beneficiaries, agreeing with the appellants that their good faith participation in the will contest negates the basis for such an assessment under section 733.106(4) of the Florida Statutes. The court clarifies that fees can only be assessed against a beneficiary's share if there is evidence of bad faith or wrongdoing, referencing precedents like Dayton v. Conger and Cohen v. Schwartz. In this case, no such misconduct was found, thus rendering the fee assessment against the appellants unwarranted. Additionally, the court acknowledges the appellants' argument that the fee assessment creates an enforceable 'in terrorem clause', which contradicts section 732.517 that protects beneficiaries from forfeiture for contesting a will. The court rejects the appellee's assertion that beneficiaries should bear the costs because they would not have inherited under intestacy laws. A review of the record indicates that certain beneficiaries would have inherited from the testatrix's estate under Florida's intestacy laws. Clarification is provided regarding the assessment of legal expenses for the personal representative, particularly in relation to a contingency fee agreement between a law firm and some beneficiaries in a previous will contest. The trial court found a fee of $760,000 to be reasonable based on statutory criteria and relevant case law, and it was noted that the personal representative was not party to the contingency agreement, which does not influence the reasonable fee determination. While the appellants raised concerns about potential dual charges to the estate for representation in the will contest, this issue is not currently before the court. The personal representative's entitlement to attorney fees from the estate is supported by statute, allowing for legal representation and compensation as outlined in various Florida Statutes. Following a previous appeal, both the appellants and the personal representative could request attorney fees, with the appellants awarded $8,000, which is affirmed and to be deducted from the residuary portion of the estate. The total attorney fee award was incorrectly stated as $827,000 and is to be corrected to $768,000. The $760,000 fee for the personal representative is affirmed, and both awards should be assessed according to the relevant statute. The final judgment is remanded for this correction, with a partial affirmation and reversal of the prior order. The list of appellants includes various heirs under the Last Will of Ruth Lane. Section 733.106(4) of the Florida Statutes (1987) grants the court discretion to determine from which part of an estate costs and attorney fees should be paid. The law firm Johnston, Sasser, Randolph, Weaver, P.A. filed a motion for attorney’s fees on behalf of Herbert Weber, the Personal Representative designated in Ruth Lane's Last Will and Testament dated February 5, 1982. Weber engaged the firm to assist in will contest litigation to validate the will. Several beneficiaries, including Elwood Lystrup and others, entered into a contingent fee agreement with the firm, committing to pay a percentage of their inheritances for attorney’s fees and costs based on the benefits derived from the litigation outcome. The applicability of the Rowe criteria in probate cases is currently under consideration by the Florida Supreme Court, with relevant cases cited including In re: Estate of Warwick and In re: Estate of Lester Platt. It is noted that the Rowe criteria need not apply where specific statutory provisions exist for determining attorney’s fees.