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Defenses, Estate Lawyers’ Fees, and Jury Demands in Probate Lawsuits with a Declaratory Judgment

Defenses, Estate Lawyers’ Fees, and Jury Demands in Probate Lawsuits with a Declaratory Judgment.


San Antonio Estate Lawyer Defenses with a Declaratory Judgment

Texas probate attorneys and trust and estates lawyers most likely would not think of “defenses” per se to a request for declaratory relief. Generally speaking, however, defending against a request primarily involves persuading the decision-maker that you are correct (doesn’t it always?), but also keeping in mind the procedural requirements of declaratory judgment actions in the first place. That means defense by attacking the petitioner’s request for failing to meet the requirements for declaratory judgments set forth in this article.

There is some authority that an estoppel argument may be made in defense of a request for a declaration, but such would be heavily dependent on the facts. In an estoppel defense to declaratory relief, the courts have considered previous settlements, court orders, and prior statements of the parties.1

Under the notion that the best defense is a good offense, and in the right circumstance, a respondent may decide it is simply best to file a counterclaim asserting whatever cause of action is based on the question(s) that the petitioner is attempting to foreclose.

Fiduciary Attorney Fees with a Declaratory Judgment

In the context of declaratory relief, either, both, or neither party may receive estate and probate attorneys’ fees. A party may be awarded attorneys’ fees and not be the prevailing party. This is always a serious consideration and potential risk for both sides in a declaratory judgment case.

Note that the Texas Supreme Court has held that Texas fiduciary litigation attorneys’, probate attorneys’, and trust and estate lawyers’ fees are not recoverable under the Declaratory Judgments Act when a party is not permitted “under the specific common-law or statutory claims [because this] would violate the rule that specific provisions should prevail over general ones.”2

Essentially, to recover lawyers’ fees under the declaratory judgment statute, the claims must not merely duplicate some other existing claim in the case. San Antonio estate lawyers and their clients are better off when they can recover fees and make the litigation more economical wherever possible.

Texas Attorney Fees Relating to Estates and Trusts

Tex. Civ. Prac. & Rem. Code § 37.009 provides the basis for recovery of Texas trust and estate lawyers’ fees under the Declaratory Judgments Act:

“In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.”
Tex. Civ. Prac. & Rem. Code § 37.009

The two major prongs are “reasonable and necessary” and “equitable and just.” The party requesting attorney lawyers’ fees must affirmatively plead for them to be eligible for a judgment containing a fee award.3

The statutory limitations are subject to other limiting principles as in other probate attorneys’ fees cases, such as segregation of fees.4

For declaration related to trustee’s discretionary power, a trustee may seek recovery of Texas estate attorneys’ fees under Tex. Prop. Code § 116.006(d).

Texas Attorney Fees Relating to Guardianships

A guardian can recover attorneys’ fees for work in recovery of property of the guardianship estate, or for management of the estate or any other matter.5

Jury Demands for a Declaratory Judgment

The Declaratory Judgments Act specifically contemplates the resolution of factual questions. If a proceeding under this chapter involves the determination of an issue of fact, the issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.6

Fact issues in declaratory judgment proceedings may be tried and determined in the same manner that issues of fact are tried and determined in other civil actions.7

1 See, e.g., In re Ray Ellison Grandchildren Trust, 261 S.W.3d 111, 127 (Tex. App. – San Antonio 2008, pet. denied)
2 MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 670 (Tex. 2009)
3 See Tex. R. Civ. P. 301; Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 915 (Tex. 2015)
4 Id. at 919; see, e.g., Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006) (requiring litigants to segregate attorney’s fees between claims that allow for the recovery of attorney’s fees and claims that do not
5 Tex. Est. Code § 1155.054; Tex. Est. Code § 1155.101
6 Tex. Civ. Prac. & Rem. Code Ann. § 37.007
7 Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719 (Tex. App. – Houston [1st Dist.] 2010, pet. denied)


James Carter | Texas Will Contest Lawyer

James W. Carter

James Carter practices law in the areas of probate, trust, and real estate litigation at Langley & Banack’s San Antonio location. Mr. Carter is known as a strong fiduciary litigation attorney with a proven track record in trying complex will contest cases. The San Antonio Business Journal presented Mr. Carter the Outstanding Lawyer Award in 2016, and he is also AV-rated “Preeminent” by Martindale-Hubbell. Mr. Carter is a frequent speaker and author on matters involving Texas probate, estate, and trust litigation.