Attorney’s Fees In Florida Will Reformation and Modification Actions

The question at the core of the March 6, 2020 Heritage Foundation v. Estate of Schmid opinion was whether section 733.1061 (2014) precludes an award of attorney’s fees from the corpus of a Florida probate estate in will reformation and modification actions.   The Second District Court of Appeals rejected the assertion that section 733.1061 imposes such a limitation and affirmed the Florida probate court’s award of fees from the corpus of the estate.

The Facts of Heritage Foundation v. Estate of Schmid

Walter Schmid died in 2014 at the age of 91, survived by his only sister, Ida Schmid Thomas, and her descendants – Donnie, her son, and Grace, Donnie’s daughter.   Walter never married and had no children.

In Walter’s 2009 will, Ida was named the personal representative.  Walter divided his estate into 100 shares and apportioned it among 10 different charities (the “Charities”).  Walter’s previous wills made Ida, Donnie, and Donnie’s issue the primary beneficiaries.

The 2009 will was admitted to probate.  Ida, both individually and as personal representative, along with Donnie and his issue, and the trustees of the Walter Schmid Trust (collectively, “Thomas”) moved to revoke or reform the 2009 will.  Thomas argued that the 2009 Will did not reflect Walter’s testamentary intent because it mistakenly omitted a devise to Ida, Donnie, and Donnie’s issue.

After the completion of discovery, Thomas agreed to voluntarily dismiss the petition to revoke or reform the 2009 will.  The Florida probate court entered an order dismissing the petition to revoke or reform and awarded the Charities attorney’s fees pursuant to section 733.1061, Fla. Stat., to be paid from the corpus of the estate.  The court rejected the Charities’ argument that the attorney’s fees should be assessed against Thomas individually, instead of the estate.  The Charities sought review of the attorney’s fee order with respect to the source of the fee award.

Entitlement to Attorney’s Fees and Costs In Florida Will Reformation And Modification Actions

The general statutory authority for attorney’s fees in Florida probate matters can be found in section 733.106, Fla. Stat.  Section 733.106 permits an award of attorney’s fees “as in chancery actions” and provides that: “When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid.”

Section 733.1061, which is entitled “Fees and costs; will reformation and modification,” provides an additional basis for a fee award in conjunction with probate reformation and modification proceedings. That section provides as follows:

(1) In a proceeding arising under s. 732.615 or s. 732.616, the court shall award taxable costs as in chancery actions, including attorney’s fees and guardian ad litem fees.

(2) When awarding taxable costs, including attorney’s fees and guardian ad litem fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, [*6]  or both.

Subsection 733.1061(1) includes the same provision as section 733.106(1) providing for the award of attorney’s fees “as in chancery actions.”

Section 733.1061 governing fees in will reformation and modification actions is different than section 733.106 in that it permits the Florida probate court to impose personal liability for attorney’s fees, allowing an award against “other property” of the party.

Does Section 733.1061 Prohibit An Award Of Attorney’s Fees From The Estate Corpus?

No.  Section 733.1061 does not limit the sources of payment to a party’s interest in the estate, other property of the party, or both.

The plain language of this subsection clearly provides the probate court with the discretion to direct payment of attorney’s fees from the interests that are listed. Although the legislature did not reiterate the probate court’s authority to award attorney’s fees from the corpus of the estate in section 733.1061(2), that authority is inherent in the court’s in rem jurisdiction as reflected by the language in section 733.1061(1), allowing it to award fees “as in chancery actions.”

Section 733.061 grants the court discretion to choose all or any of the listed sources for payment of fees: from a party’s interest in the estate, other property of the party, or both.  The use of the word “may” indicates that these sources may bear an attorney’s fee award, not that these sources must.  Thus, the plain language of section 733.1061 does not limit the sources of payment to a party’s interest in the estate, other property of the party, or both.  The court stated:

If we were to limit the sources of payment in section 733.1061(2) to those specifically listed, then the statute would preclude the award of attorney’s fees to a prevailing beneficiary when the estate was the only opposing party. This would be inconsistent with section 733.1061(1)’s mandate that the court “shall award taxable costs as in chancery actions, including attorney’s fees.” (Emphasis added.); see Wheaton, 261 So. 3d at 1243 (holding that the word “shall” is a mandatory term).

For more information about attorney’s fees, read the Complete Guide to Attorney’s Fees in Florida Probate.

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