One particularly introspective task that a lawyer can undertake
is the preparation of an affidavit of attorney's fees in
conjunction with a client's motion for fees. If you are preparing
such an affidavit, chances are your client has already prevailed in
some way. But having a court evaluate your efficiency and
scrutinize your strategy (and perhaps your and your client's
personal conduct) can quickly lead to more than just a little
second-guessing about the handling of a case.
As part of its usual business, Probate Courts review
applications for fiduciary fees, frequently assessing attorney's
fees incurred by guardians, conservators, executors, administrators
and trustees carrying out their duties. Probate Courts are thus
accustomed to evaluating the monetary value lawyers provide.
Probate Courts review attorney's fees in other contexts as well.
Probate litigation differs from most other types of litigation in
that there is a greater risk that an opposing party may pay a
prevailing party's attorney's fees. Under G.L. c. 215,
§45,1 Probate Courts, unlike other Massachusetts courts,
have the discretion to award attorney's fees in contested matters
"as justice and equity may require."
G.L. c. 215, §45 deviates from the "American Rule," which
provides that litigants pay their own attorney's fees, regardless
of the outcome of lawsuits, unless a statute specifically provides
for the recovery of fees. The purpose of the American Rule is to
encourage parties to utilize the judicial system to resolve good
faith disputes even though their claims or defenses may not
ultimately be successful. The American Rule permits parties to
advocate their positions without the risk that they would have to
pay the opposing parties' - as well as their own - legal fees if
they do not prevail. A byproduct of the American Rule mindset is
that payment of attorney's fees is usually not part of settlement
Parties who litigate in Probate Court, however, face a risk that
a Probate Court will punish weak claims or obstructionist tactics
with an order to pay the opposing party's fees. Two recent
high-profile, high-fee cases examine the standards for awarding
attorney's fee in probate matters. The cases underscore the
critical importance of not using the judicial system - or at least
the Probate Court - to wage overly emotional or meritless family
The Estate of Bartley J. King
In the matter of The Estate of Bartley J.
King,2 the Supreme Judicial Court undertook a
comprehensive analysis of the standard for the awards of fees under
G.L. c. 215, §45. In Bartley, beneficiaries of an estate
filed suit against the executor and primary beneficiary challenging
the validity of the will and pre-death property transfers. After a
nine-day trial, the Probate Court trial judge rejected the
contestants' claims, finding no credible evidence of the decedent's
lack of capacity or undue influence.
Post trial, the executor filed a motion that sought a whopping
$710,321.50 in attorney's fees and $95,868.47 in costs. The total
estate was only $1.2 million. The executor alleged that the
contestants "had engaged in a 'two and half year campaign to punish
… [the executor] for her father's generosity,' and should be
ordered 'to bear the financial burden that they willfully imposed
on … [the executor] by persisting in their unsubstantiated and
baseless claims.'" In addition to seeking fees under G.L. c. 215,
§45, the executor also sought fees under G.L. c. 231, §6F, an
often-pled but rarely invoked statute permitting the recovery of
attorney's fees when the opposing claims are "wholly insubstantial
The executor's motion for attorney's fee was heard by a judge
different from the trial judge. The motion judge indicated that the
hearing was not so much concerned about whether the
Probate Court would award fees, but about what amount of attorney's
fees was reasonable. The motion judge stated that she was familiar
with the lengthy procedural history as well as the trial judge's
findings and conclusions and commented that the record implicitly
entitled the executor to an award of fees.
After a two-day hearing, the motion judge rejected the
executor's claim under G.L. c. 231, §6F, finding that the
contestants initially acted in good faith. However, the Probate
Court motion judge found that fees were warranted under G.L. c.
215, §45 and awarded the executor $510,321.50 in fees and $64,000
in costs. The motion judge found that the contestants "unreasonably
extended litigation" and "[a]fter two years of discovery, [they]
should have realized that their claims were no longer
Upon appeal by the contestants, the SJC confirmed that under
G.L. c. 215, §14 and as part of its general equity jurisdiction,
the Probate Court has the authority to award costs in matters
involving estate and trusts.3 The SJC stressed, however,
that the statute does not contemplate an award of costs or fees as
a matter of course. Yet, the SJC also stressed that an award of
attorney's fees is not only limited to "rare and egregious cases,"
as the contestants argued.
The SJC first analyzed whether fees under G.L. c. 215, §14 were
limited to cases involving bad faith or wrongful
conduct.4 The SJC noted that some "judges have used bad
faith, or its absence, as a touchstone in determining whether to
make an award under §45." But the SJC concluded that the "bad
faith" standard is not mandatory and delineated examples of conduct
that has resulted in orders to pay fees, including: causing
confusion by "equivocal conduct in relation to estate
property;"5 a party who had "torpedoed the settlement to
which he previously agreed;"6 and where the defendant
improperly refused the administrator's demand for release of estate
funds.7 Another key fact for consideration is whether
refusal to shift attorney's fees and costs to the prevailing party
ends up distorting the valid estate plan of the
decedent.8 In other words, do the intended beneficiaries
of an estate end up with far less than the decedent intended
because they needed to pay so much in attorney's fees as a result
of misguided litigation?
After finding that the award of fees could be appropriate, the
SJC in Bartley considered whether an evidentiary hearing
on the fee issue was necessary. In the Probate Court, the motion
judge held a hearing, but did not take evidence on whether to award
fees. The SJC found that this procedure was error and concluded
that prior to determining an amount of fees, the motion judge
should have made specific findings on whether fees should be
awarded rather than just referring generally to the contestants'
efforts to prolong and complicate the litigation.
The SJC next considered whether the record supported the motion
judge's award of $510,321.50 in attorney's fees. Below, the motion
judge determined that it was reasonable for the executor to expect
and defend a will contest. The motion judge then arrived at the
award of fees by subtracting what that litigation should have cost
the executor from what the litigation actually cost the executor
($710,321 - $200,000 = $510,321) given that the contestants "were
excessively zealous in litigating" the case.
In reviewing the propriety of the motion judge's award, the SJC
noted the following familiar factors:
In determining what is a fair and reasonable charge to be
made by an attorney for his services many considerations are
pertinent, including the ability and reputation of the attorney,
the demand for his services by others, the amount an importance of
the matter involved, the time spent, the prices usually charged for
similar services by other attorneys in the same neighborhood, the
amount of money or the value of the property affected by
controversy; and the result secured. Neither the time spent nor any
other single factor is necessarily decisive of what is to be
considered as a fair and reasonable charge for such
The SJC delineated other important considerations as well, such
as: the necessity of the services; the extent to which duplicate or
redundant efforts were involved; the conduct of the party seeking
the award of fees; and the complexity of the matter.
The SJC stressed that the motion judge gave no indication that
she evaluated the billing records submitted by the executor's
attorneys and erroneously assumed the reasonableness of the total
fees requested. Thus, while the SJC indicated that Probate Court
has wide discretion to determine a fair award of fees, it must
consider the applicable factors and must "undertake a more specific
and searching analysis of the actual request for fees and costs
The SJC remanded the case to the Probate Court for a
determination as to whether the executor was entitled to an award
of attorney's fees, and, if so, with the instruction that the
Probate Court analyze whether the requested fees are fair and
In Re: Guardianship of Kenneth E.
In the matter of In re Guardianship of Kenneth E.
Simon,10 the Barnstable Probate Court issued
detailed findings of fact and conclusions of law concerning
excessive fees - about $500,000 - charged by a guardian and his
counsel in connection with a guardianship lasting only about 83
days. The case involved a rather sordid tale of a former mutual
fund manager, Kenneth Simon, and his much younger wife, who had
served jail time for running a prostitution ring. The thrust of the
saga was the guardian's apparent allegiance to Simon's children,
who disapproved of the wife, and the guardian's apparently
obsessive campaign to alienate and even imprison Simon's wife.
Because Simon lacked legal capacity, attorney E. James Veara was
appointed guardian. Simon's assets at the commencement of the
guardianship totaled about $4.5 million. Veara's efforts to bilk
the estate and conflicts of interest began immediately when Veara
increased his customary rate of $100 to $300 per hour to $400 per
hour and hired a significant referral source, attorney Gerald
Nissenbaum, as his personal counsel.
The matter was brought before the Probate Court on Simon's
children's challenge to Veara's accounts. In the lengthy
proceedings, Veara and Nissenbaum's fees and tactics were
After trial, the Probate Court chastised Veara for billing in
quarter-hour increments, for his poor recordkeeping and for not
having a fee agreement with Nissenbaum. The Probate Court
emphasized disapprovingly that Veara and Nissenbaum kept large
retainers of $50,000 and $25,000 to $35,000 respectively.
The Probate Court also made many finding that suggested that
Veara and Nissenbaum did not act objectively or in the ward's best
interests. The Probate Court stressed that Veara did not meet with
Simon immediately after his appointment and questioned Veara's
motives in waiving Simon's attorney-client privilege. The Probate
Court found that Nissenbaum improperly represented both the
guardian as well as Simon's children. The Probate Court also
lambasted Veara and Nissenbaum for putting pressure on Simon's wife
to leave Simon for money as well as tactics orchestrated to put her
in jail, including paying $20,000 to hire a private investigator to
follow her. Veara improperly tried to revoke Simon's will, change
his estate plan and even attempted to file for a divorce and an
The Probate Court criticized Veara and Nissenbaum for filing
numerous frivolous pleadings and their general contentious conduct.
Veara and Nissenbaum allegedly spent $80,000 just taking
depositions. They also charged an extraordinary amount of money
performing ministerial tasks and duplicating each other's
The Probate Court noted that a fiduciary should be allowed his
reasonable expenses, costs and counsel fees incurred in the
execution of his fiduciary duties. What is a reasonable fee is a
question of fact for a trial judge. The facts that a Probate Court
should take into account when approving fees under G.L. c. 206, §16
include the size of the estate, the marketable nature of the
assets, the factual and legal questions involved in administering
the estate, the time necessary to do the work, the skill and
ability employed, the amounts usually paid to others for similar
work and the results accomplished.11
The Probate Court concluded that tactics taken by Veara and
Nissenbaum from the beginning of the case were improper and that
many of their actions were unnecessary. The Probate Court seemed
particularly offended by Veara's altered high hourly rate and the
witch hunt against Simon's wife. The Probate Court noted that at
trial, Veara and Nissenbaum did not present any evidence that Simon
would have consented to these expenses had he been aware of them
and that Veara and Nissenbaum were "far less concerned with the
ward and his health than they were getting rid of Mrs. Simon and
the ward's money."
In its judgment, the Probate Court reduced Veara's hourly rate
to $200 and cut his total time by 50 percent. The Probate Court
likewise slashed Nissenbaum's claimed fees in half. As part of the
judgment, the Probate Court surcharged Veara and Nissenbaum for
frivolous expenses, including fees paid to a private investigator
and money paid to a research firm for research that the court
Key consideration in submitting applications for fees to
the Probate Court
Probate Courts adjudicate often contentious family disputes. As
a result, lawyers representing fiduciaries or beneficiaries have to
be particularly careful not to become embroiled in self-serving or
even vindictive emotions that often engender legal family disputes.
In probate litigation, because the American Rule does not
necessarily apply, lawyers must be careful to advise clients that
wrongful conduct, or even lack of reasonableness, could result in
paying opposing parties' legal fees. While the award of legal fees
is still the exception, and while the lessons in Simon are
extreme, Bartley clearly illustrates that the award of
fees is within the Probate Court's discretion and Simon
illustrates how critically a court can scrutinize legal fees.
Legal efficiency is a goal in any legal representation, but the
possibility of receiving or paying fees should be an incentive to
pay particular attention in filling out a timesheet every day.
Lawyers should take particular care to avoid duplication of efforts
and to minimize charging for ministerial tasks. Lawyers also need
to be cognizant when both the fiduciary's and the lawyer's meters
are running at the same time.
As with all litigation, in probate cases lawyers need to ensure
that the requested fees are a reasonable proportion of the amount
in controversy. In both Bartley and Simon, the
courts noted that the fees were extremely high in view of the total
value of the estate. So much of litigation is reactionary and most
litigators spend a fair amount of time explaining the costs of
litigation are subject to many variables beyond the lawyer or
litigant's control, but in contested probate matters, lawyers need
to take particular care that the cost of the fight does not
supersede the economic reality of the controversy.
1. "In contested cases before a probate court
or before the supreme judicial court on appeal, costs and expenses
in the discretion of the court may be awarded to either party, to
be paid by the other, or may be awarded to either or both parties
to be paid out of the estate which is the subject of the
controversy, as justice and equity may require. In any case wherein
costs and expenses, or either, may be awarded hereunder to a party,
they may be awarded to his counsel or may be apportioned between
them. Execution may issue for costs awarded hereunder." G.L. c.
2. 455 Mass. 796 (2010).
3. Mulloney v. Barnes, 226 Mass. 50,
4. See Old Colony Trust Co. v. Third
Universalist Soc'y of Cambridge, 285 Mass. 146, 150-151
5. Hurley v. Noone, 347 Mass. 182,
6. Strand v. Hubbard, 31 Mass. App.
Ct. 914, 914-915 (1991).
7. Bright v. American Felt Co., 343
Mass. 334, 337 (1961).
8. Strand v. Hubbard, 35 Mass. App.
Ct. at 914-915.
9. Cummings v. Nat'l Shawmut Bank,
284 Mass. 583, 569 (1993).
10. Docket No. BA05P-110-GI1.
11. McMann v. Krapf, 323 Mass. 118
Patricia L. Davidson is a partner
at Mirick O'Connell in the Probate, Trust and Fiduciary Litigation
Group and the Business and General Litigation Group. Her practice
focuses on resolving issues involving wills, trusts and real
estate, as well as disputes involving family and closely-held
businesses. In addition, she represents individual and
institutional fiduciaries. She also litigates complex business