Section 18.29 Attorney Fees

• Library: Estate Administration 2014 Supp

VIII. (§18.29) Attorney Fees

Section 527.100, RSMo 2000, provides that in certain proceedings, including actions for declaratory judgment, the court may award such costs “as may seem equitable and just.” Attorney fees may be awarded as costs in declaratory judgment actions that present “special circumstances.” Bernheimer v. First Nat. Bank of Kansas City, 225 S.W.2d 745, 755 (Mo. banc 1949). But if an attorney fails to properly advise the personal representative, attorney fees may be disallowed. Estate of Johnson v. Kranitz, 168 S.W.3d 84 (Mo. App. W.D. 2005).

Section 456.10-1004, RSMo Supp. 2008, of the Missouri Uniform Trust Code (MUTC), Chapter 456, RSMo, creates additional authority for a court to award attorney fees and costs. The court “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.” Section 456.10-1004. This language is modeled after a Massachusetts law. For Uniform Trust Code (2000), 7C U.L.A. 362 (2006 and Supp. 2009), and MUTC comments, see 4C Francis M. Hanna, Missouri Practice, Trust Code and Law Manual § 456.10-1004, p. 93 (West 2008).

Some parties to an action to construe a will or trust have been allowed to recover their attorney fees from the estate or trust. Except when the construction of a will may affect a trust, only the personal representative may be awarded attorney fees in an action to construe a will. In re Estate of Beare, 880 S.W.2d 562, 567 (Mo. App. E.D. 1993); In re Estate of Stengel, 557 S.W.2d 255, 263 (Mo. App. E.D. 1977). When a will establishes a trust, an attorney for a trustee in a will construction suit is entitled to be paid the full value of that attorney’s services, but the attorney for claimants to the estate is entitled to be paid only for the value of their services to the estate. See:

· In re Estate of Chrisman, 723 S.W.2d 484, 487 (Mo. App. E.D. 1986)

· First Nat’l Bank of Kansas City v. Danforth, 523 S.W.2d 808, 823 (Mo. 1975)

· Lang v. Taussig, 194 S.W.2d 743 (Mo. App. E.D. 1946)

· Trautz v. Lemp, 72 S.W.2d 104 (Mo. banc 1934)

For example, in Mercantile Trust Co. v. Muckerman, 377 S.W.2d 355, 360 (Mo. 1964), the Court held that the will was sufficiently ambiguous to warrant the trustee of a testamentary trust bringing a declaratory judgment action to construe its terms; therefore, the trustee was entitled to a reasonable allowance out of the trust estate for attorney fees...