Wisconsin Court of Appeals rules no attorney fees in settlement.

• Author: Ziemer, David

Byline: David Ziemer

Where a will dispute ends in settlement, no one can recover attorney fees as a prevailing party.

Besides holding that sec. 879.37 provides no statutory authority for such an award, the Wisconsin Court of Appeals also explained that, To conclude otherwise would require courts to scrutinize the terms of settlement agreements to determine whether a party can be deemed to have prevailed, which will no doubt be a tricky business given the mutual concessions that are made in achieving settlement.

Shirley A. Wolf was the named personal representative in the will of the deceased, Frances V. Wolf. Frances V. Engle contested the will on the grounds of undue influence.

The parties eventually settled. The will was admitted into probate, and Shirley paid Engle $32,500 and gave Frances Wolf's wedding rings to Engle.

There was no language in the settlement agreement concerning attorney fees.

Nevertheless, Shirley moved to recover her attorney fees from the estate. Milwaukee County Circuit Court Judge John J. DiMotto denied the motion.

Shirley appealed, but the Court of Appeals affirmed in an opinion by Judge Patricia S. Curley.

Shirley argued that she could recover pursuant to a provision in the statute stating that, Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters.

Although she made concessions to Engle, Shirley argued that she was a prevailing party under the statute because the will was admitted to probate.

However, the court concluded that, in the absence of a judicial determination on the merits of the will contest, Shirley could not be deemed a prevailing party.

The court further concluded that, without a judicial determination as...