Traditionally, each party to a lawsuit must pay their own fees and expenses, including attorney fees.  Courts typically award litigation fees and expenses against another party only in cases where the other party engaged in egregious conduct such as bad faith or fraud.  Not so in trust litigation.  Section 1004 of the Uniform Trust Code provides a fee-shifting mechanism where litigation fees and expenses may be charged against another party even in the absence of egregious conduct.

Section 1004 of the Uniform Trust Code provides that “in a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.”  The fee shifting statute’s standard  for awarding costs and expenses is “as justice and equity may require;” certainly a different standard than the traditional standard of egregious conduct like bad faith or fraud.  “As justice and equity may require” is a standard that gives broad discretion to a court to award fees and expenses against another party.  Often times, a court will make a determination on whether to award a beneficiary’s litigation costs against the trustee based on a determination of whether the litigation has been beneficial to the trust.  This is the standard that an Ohio court recently used.

In McHenry vs. McHenry, 2017-Ohio-1534, the Ohio Fifth Appellate District awarded fees and expenses to the beneficiary of the trust.  In McHenry, the plaintiff beneficiary claimed that the trustee breached its fiduciary duty.  The Court agreed and awarded $13,364 to the beneficiary for damages and awarded the beneficiary $49,444 in attorney fees.  On appeal the defendant trustee argued that the attorney fee award was excessive given the relatively small damage award.  In essence, the defendant trustee argued that the Court should apply a rule of proportionality when awarding attorney fees.  The Court rejected the defendant trustee’s argument and held that “a rule of proportionality in trust cases would make it difficult for beneficiaries with meritorious claims against the trustee, but with relatively small potential damage claims, to seek redress in the court.”

Parties to trust litigation should be acutely mindful of the fee shifting statute.  If they are not, they may have to pay not only their attorney’s fee but the other side’s attorney’s fee as well.

  • Mark Hartnett

    This is certainly one reason why we see relatively few trustee-beneficiary cases.