What is the test for determining whether a trust can recover litigation costs and attorneys' fees from the estate of a deceased?

California, United States of America


The following excerpt is from Whittlesey v. Aiello, 104 Cal.App.4th 1221, 128 Cal.Rptr.2d 742 (Cal. App. 2002):

Allowance of litigation expenses rests in the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse. (Estate of Vokal (1953) 121 Cal.App.2d 252, 260, 263 P.2d 64.) "The underlying principle which guides the court in allowing costs and attorneys' fees incidental to litigation out of a trust estate is that such litigation is a benefit and a service to the trust." (Dingwell v. Seymour (1928) 91 Cal.App. 483, 513, 267 P. 27.) Consequently, where the trust is not benefited by litigation, or did not stand to be benefited if the trustee had succeeded, there is no basis for the recovery of expenses out of the trust assets.

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