Matter of Estate of Petersen

570 N.W.2d 463, 1997 Iowa App. LEXIS 91, 1997 WL 732128
CourtCourt of Appeals of Iowa
DecidedSeptember 24, 1997
Docket96-0543
StatusPublished
Cited by7 cases

This text of 570 N.W.2d 463 (Matter of Estate of Petersen) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Estate of Petersen, 570 N.W.2d 463, 1997 Iowa App. LEXIS 91, 1997 WL 732128 (iowactapp 1997).

Opinions

HUITINK, Judge.

Carol Petersen and Leona Freed appeal from the district court’s ruling denying their [465]*465request for attorney’s fees incurred in the successful defense of a will contest. We reverse.

I.Background Facts and Proceedings.

The record discloses the following series of events following Mabel Petersen’s death on May 8, 1994. On May 9, 1994, Mabel’s children, Ezra Petersen and LeRoy Petersen filed objections to the admission of Mabel’s June 29, 1993 will to probate. On May 12, 1994, the district court granted Leona Freed’s ex parte application for appointment as temporary administrator of Mabel’s estate pending resolution of Ezra and LeRoy’s objections. On May 17, 1994, Ezra and LeRoy filed a separate application for appointment of an administrator and cancellation of Leona’s appointment as temporary administrator. On May 17, 1994, Leona’s lawyer obtained a second ex parte order authorizing her to employ counsel to defend Mabel’s 1993 will at estate expense.

On July 20, 1994, the district court issued an order resolving the dispute over temporary administration of Mabel’s estate. Leona’s appointment as temporary administrator and her authority to employ counsel to defend Mabel’s 1993 will were revoked. First American State Bank of Fort Dodge was appointed temporary administrator.

On May 2, 1995, the district court issued an order adjudicating law points raised in Carol and Leona’s motion for adjudication of law points. In this order, the court identified the issues raised in Ezra’s and LeRoy’s objections to Mabel’s 1993 will and ordered the resulting will contest proceed to trial in November 1995. The order also named Leona and Carol as proponents of Mabel’s 1993 will and LeRoy and Ezra as contestants appropriately allocating the burden of proof on the issues raised. After a three day trial in November 1995, the jury rejected LeRoy’s and Ezra’s claims that Mabel lacked the testamentary capacity to execute a will on June 29, 1993, or that this will was the result of undue influence. Mabel’s June 29, 1993 will was admitted to probate and Leona and Carol were appointed co-executors.

Leona and Carol subsequently applied for court-ordered reimbursement by Mabel’s estate of their legal fees and expenses incurred in the defense of the will contest. The district court denied their request, citing the absence of any court authorization allowing Leona or Carol to employ counsel for this purpose. The court also concluded the will contest was essentially a personal dispute among Mabel’s children and no significant estate interest was advanced by their defense of Mabel’s 1993 will.

On appeal Carol and Leona contend the district court abused its discretion by refusing to award attorney’s fees and costs as requested. They also challenge the district court’s conclusion that the will contest was a personal dispute and no estate interest was advanced by their efforts.

II. Standard of Review.

Probate proceedings concerning costs of estate administration are equitable in nature. In the Matter of the Estate of Wulf, 526 N.W.2d 154, 155-56 (Iowa 1994). Costs of administration includes attorney’s fees. Iowa Code § 633.3(8)(1995). Our review is accordingly de novo. Iowa R.App. P. 4. We review the peculiar circumstances of each case to determine whether an executor “may legally obligate the estate for attorney’s fees.” Wulf 526 N.W.2d at 156 (citations omitted). The allowance of attorney’s fees in estate actions is left to the considerable discretion of the trial court subject to appellate review. In re Estate of Olson, 479 N.W.2d 610, 614 (Iowa App.1991) (citation omitted).

III. Error Preservation.

Ezra and LeRoy argue Leona and Carol have not preserved the issue of attorney’s fees and costs for appeal. They cite Carol’s and Leona’s failure to request advance authorization to incur attorney’s fees prior to or dining the will contest. They also cite language in the court’s May 2,1995 ruling adjudicating points of law stating “It appears that the temporary administrator is not a party to this action and the costs and fees will be born by the respective proponents and contestants.”

We strongly disagree with Ezra’s and Le-Roy’s characterization of the above language [466]*466as the dispositive ruling on Leona’s and Carol’s entitlement to attorney’s fees. Close examination of the order and its originating motion indicates attorney fees were not an issue raised by the motion. The court’s language does not expressly or by implication grant or deny attorney’s fees or expenses. It is more appropriately characterized as a gratuitous observation of the temporary administrator’s role in the will contest and the immediate absence of any issue regarding attorney fees or costs.

Although an action objection to probate of a will is tried as a separate law action, resolution of the will’s proponents claim for attorney’s fees is nevertheless resolved as part of the probate proceedings. See Iowa Code §§ 633.3(8), 633.198, 633.199 (costs of administration include attorney’s fees and the court determines the propriety and amount of attorney’s fees awarded). We hold preservation of any error resulting from the court’s resolution of such a claim is accomplished by the record made in the appropriate probate proceeding and not the will contest. Because the request for reimbursement was made by appropriate application in the probate proceedings, any resulting error was preserved.

TV. The Merits.

Iowa Code section 633.315 provides:

When any person is designated as executor in a will, or has been appointed as executor and defends or prosecutes any proceedings in good faith and with just cause, whether successful or not, that person shall be allowed out of the estate necessary expenses and disbursements, including reasonable attorney fees in such proceeding.

Executors seeking reimbursement have the “burden of proving he or she acted in good faith and with just cause in engaging in the proceedings.” Wulf, 526 N.W.2d at 156.

We have noted that it is a better practice to obtain court authorization for attorney’s fees prior to engaging the defense of a will contest. Prior authorization is, however, neither required nor is it dispositive of the question of just cause supporting an award of attorney’s fees and costs. See In re Estate of Olson, 479 N.W.2d at 614 (citing In re Estate of Law, 253 Iowa 599, 602-604, 113 N.W.2d 233, 234-36 (Iowa 1962)). Moreover, we reject as inconsistent with the literal terms of section 633.315 any notion that designated as opposed to appointed executors are precluded from recouping expenditures made in defense of a will. Such a rule would allow for the effective preemption of any recovery simply by filing objections to the contested will before it is offered for probate and the nominated executors appointed.1 It was error for the district court to conclude otherwise.

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570 N.W.2d 463, 1997 Iowa App. LEXIS 91, 1997 WL 732128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-estate-of-petersen-iowactapp-1997.