879.37 Attorney fees in contests. Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
History: 1993 a. 486; 2001 a. 102.
A finding of undue influence on the part of the unsuccessful proponent disqualifies it from asserting “good faith” under this section. In re Estate of Christen, 72 Wis. 2d 8, 239 N.W.2d 528 (1976).
If the court finds good faith, the court may, but need not, award costs and attorney fees to the unsuccessful proponent of a will. Estate of Persha, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, 01-1132.
An objector is a prevailing party if he or she achieves some significant benefit in litigation involving a claim against the estate. The prevailing party can include multiple interested parties who register objections and defend. The awarding of attorney fees is not limited to when the personal representative fails to act or when the award benefits the estate. The award of attorney fees is discretionary. Estate of Wheeler v. Franco, 2002 WI App 190, 256 Wis. 2d 757, 649 N.W.2d 711, 01-3344.
This section limits a prevailing party to recovery from the estate only. It does not allow the prevailing party to seek to recover costs and fees from the portion of the estate that is distributed to particular heirs. Bloom v. Grawoig, 2008 WI App 28, 308 Wis. 2d 349, 746 N.W.2d 532, 07-0042.
There is no prevailing party and no appealable contested matter when a will contest results in settlement. As such, the trial court properly denied a party’s claim for attorney fees. Wolf v. Estate of Wolf, 2009 WI App 183, 322 Wis. 2d 674, 777 N.W.2d 119, 09-0781.
Nothing in s. 879.33 or this section suggests a trial is necessary for an award of attorney fees and costs. When a party concedes nothing and an opposing party capitulates before the court to the very best outcome the first party could have achieved if the matter had proceeded to trial, the first party has prevailed. Troy v. Hurkman, 2017 WI App 59, 378 Wis. 2d 75, 902 N.W.2d 794, 16-0387.