Can I File a Will Contest on a Contingency Fee Basis?

The cost of hiring an attorney is one of the most common concerns for people considering a will contest. Probate litigation can be expensive, particularly when a case requires extensive discovery, depositions, expert witnesses, or a trial. At the same time, a person who has been wrongfully disinherited may not have the financial resources to pay thousands—or potentially tens of thousands—of dollars in attorney’s fees while the litigation is pending.

In some cases, a contingency fee arrangement provides an alternative. Under a contingency fee agreement, an attorney agrees to represent a client without requiring the client to pay hourly attorney’s fees as the case progresses. Instead, the attorney receives an agreed percentage of any money or property recovered for the client. Depending on the case and the terms of the agreement, this percentage is commonly somewhere between 33% and 40%.

If nothing is recovered, the attorney generally does not receive a fee for the legal services performed. This means that the attorney assumes a substantial portion of the financial risk associated with the litigation. Clients should understand, however, that attorney’s fees and litigation expenses are not necessarily the same thing. Depending on the written fee agreement, the client may still be responsible for filing fees, deposition expenses, expert-witness fees, mediation expenses, record-retrieval charges, and other costs even if the case is unsuccessful.

Contingency fee arrangements can be particularly useful in will contests because the very inheritance the client is attempting to recover may be the reason the client cannot afford to hire an attorney on an hourly basis. A beneficiary may have a potentially valuable claim to an estate but little ability to finance years of probate litigation out of pocket.

That does not mean, however, that every will contest is suitable for a contingency fee. Because the attorney may invest hundreds of hours of work and substantial resources into a case without any guarantee of being paid, attorneys generally evaluate potential contingency cases carefully.

What Makes a Will Contest a Good Contingency Fee Case?

When an attorney accepts a will contest on a contingency basis, the attorney is effectively making an investment in the case. Instead of receiving payment for work as it is performed, the attorney agrees to wait until the case is successfully resolved—and accepts the possibility that there may ultimately be no fee at all.

For that reason, an attorney evaluating a potential contingency fee case will ordinarily consider two related questions: How likely is the case to succeed, and how likely is a successful result to produce an actual recovery for the client?

A good candidate for a contingency fee arrangement typically has one or more of the following characteristics.

Strong Merits

The strength of the underlying will contest is usually the most important consideration. An attorney is unlikely to accept a weak or highly speculative case on a contingency basis simply because a large estate is involved.

A viable will contest must be based upon a legally recognized reason for challenging the validity of the will. Disappointment with an inheritance is not enough. Neither is the fact that a will appears unfair or treats children differently. Instead, there must generally be evidence supporting a recognized basis for invalidating the will, such as undue influence, fraud, lack of testamentary capacity, forgery, improper execution, or another defect affecting the validity of the testamentary instrument.

For example, a case may be particularly compelling when an elderly testator suffering from significant cognitive impairment abruptly changes a longstanding estate plan shortly before death and leaves substantially everything to a caregiver who isolated the testator from family members and participated in obtaining the new will. Those facts do not automatically establish undue influence or lack of testamentary capacity, but they may justify a much closer investigation.

By contrast, a prospective client who merely believes that “Mom would never have done this” without witnesses, documents, medical evidence, suspicious circumstances, or other corroborating evidence presents a substantially greater risk.

Significant Assets at Stake

The value of the potential recovery is another important consideration.

Contingency litigation requires an attorney to devote substantial time to a case without being paid while that work is being performed. A contested probate proceeding can involve written discovery, subpoenas, review of thousands of pages of medical and financial records, depositions, expert witnesses, mediation, pretrial hearings, and ultimately a trial.

The potential recovery must therefore justify the amount of work and financial risk involved.

This does not necessarily mean that the estate itself must be extraordinarily wealthy. The more important consideration is generally the value of the client’s realistic claim.

Suppose, for example, that an estate is worth $3 million but the client would receive only $50,000 if the challenged will were invalidated. From the client’s perspective, the relevant potential recovery is ordinarily closer to $50,000 than $3 million. Conversely, a $1 million estate may present a much more attractive contingency case if successfully setting aside the disputed will would entitle the client to receive one-half of the estate.

The attorney must therefore determine not merely how much the estate is worth, but what the client could actually recover if the litigation succeeds.

Clear and Persuasive Evidence

Good facts are considerably more valuable when they can actually be proven.

A prospective client may have strong suspicions about what occurred before a loved one’s death. Litigation, however, must ultimately be based upon admissible evidence.

Evidence supporting a will contest may include medical records showing cognitive decline; testimony from friends, relatives, caregivers, physicians, or other witnesses; emails and text messages; financial records; prior wills and estate-planning documents; communications with the attorney who drafted the challenged will; evidence that a beneficiary participated in procuring the new will; and expert testimony concerning testamentary capacity, handwriting, or other disputed issues.

The timing of the evidence can also be extremely important. In a testamentary-capacity case, for example, evidence concerning the testator’s mental condition around the date the disputed will was executed is generally much more useful than evidence concerning the testator’s condition years earlier.

The stronger and more readily available the evidence, the easier it is for an attorney to evaluate the case and assess the risks associated with accepting it on a contingency basis.

The Size of the Estate Is Not the Same as the Amount Available for Recovery

One mistake prospective clients sometimes make is assuming that a valuable estate necessarily means that a will contest is a valuable case.

An estate may contain substantial assets but also substantial liabilities. Mortgages, creditor claims, taxes, administration expenses, attorney’s fees, and other obligations can significantly reduce the amount ultimately available for distribution.

The nature of the property also matters. A $2 million estate consisting largely of illiquid or heavily encumbered real estate presents different considerations from an estate containing $2 million in cash and marketable securities.

There may also be questions about whether particular assets are actually probate assets. Life insurance, retirement accounts, payable-on-death accounts, survivorship accounts, and other property may pass outside the will altogether. Successfully invalidating a will does not necessarily change the beneficiary designation governing those assets.

Accordingly, a contingency fee evaluation should include an assessment of the probable net recovery, rather than simply relying upon an estimate of the decedent’s gross wealth.

A High Likelihood of Actual Recovery

Winning a lawsuit and collecting money are two different things.

An attorney considering a contingency fee case must evaluate not only whether the client can prevail, but whether there will actually be assets available from which the client can recover.

In a traditional will contest, this issue may be relatively straightforward because the disputed assets remain in the estate while the parties litigate over who is entitled to receive them. In other probate litigation, however, the property may already have been transferred, sold, spent, concealed, or dissipated.

For example, suppose an individual improperly transferred hundreds of thousands of dollars from the decedent before death. Even if the estate has a strong claim against that individual, a judgment has limited practical value if the defendant has spent all of the money and owns no assets from which the judgment can be collected.

An attorney considering a contingency arrangement must therefore consider the ability to collect the recovery as well as the ability to obtain a favorable judgment.

The Amount of Work Required Matters

Two cases involving identical potential recoveries may nevertheless present very different contingency-fee risks.

One case might involve a relatively narrow issue, a handful of witnesses, readily available records, and a realistic opportunity for early settlement. Another might require dozens of depositions, extensive medical records, forensic accounting, multiple expert witnesses, complicated property tracing, and a multi-week jury trial.

The second case obviously requires a much greater investment of attorney time and litigation expenses.

For that reason, the potential value of the claim must be considered in relation to the anticipated cost and complexity of pursuing it. A $200,000 potential recovery may support a contingency arrangement in a relatively straightforward case but may be economically impractical in litigation expected to require years of work and enormous expenses.

Expert Witnesses Can Make Contingency Cases More Expensive

Some will contests cannot realistically be prosecuted without expert testimony.

A forged-will case, for example, may require a forensic document examiner to compare the disputed signature with known handwriting samples. A testamentary-capacity case may benefit from medical or psychiatric expert testimony. Other estate disputes may require forensic accountants, appraisers, real-estate experts, or other specialists.

Expert witnesses can be expensive. They may charge for reviewing records, preparing reports, consulting with attorneys, giving depositions, traveling, and testifying at trial.

This raises an important question in any contingency fee arrangement: Who advances the expenses of litigation?

The answer depends upon the agreement between the attorney and client. In some cases, the law firm may advance certain expenses and recover them from the client’s share if the case succeeds. In others, the client may be required to pay some or all expenses as they are incurred.

These issues should be clearly addressed in the written contingency fee agreement before litigation begins.

Contingency Fees Can Give Clients Access to Probate Litigation

One of the principal advantages of a contingency fee is that it can give a person access to the courts when they otherwise could not afford to pursue a legitimate claim.

Consider a child who expected to inherit a substantial portion of a parent’s estate but discovers after the parent’s death that a new will leaves everything to someone else. The child may have compelling evidence that the new will resulted from undue influence, but the assets that would otherwise have provided the child with the resources to hire an attorney are the very assets being disputed.

Requiring that person to finance extensive litigation on an hourly basis could effectively prevent the will from ever being challenged.

A contingency arrangement changes that equation. The attorney assumes the risk of nonpayment in exchange for receiving an agreed percentage of the client’s recovery if the case succeeds.

This arrangement also aligns the financial interests of attorney and client in an obvious respect: both have a financial interest in obtaining the best possible recovery.

The Trade-Off: A Successful Case May Result in a Larger Attorney’s Fee

The benefit of avoiding substantial upfront attorney’s fees comes with a corresponding trade-off.

If a contingency case produces a significant recovery, the resulting attorney’s fee may be substantially greater than the amount the client would have paid under an hourly arrangement.

For example, if a case resolves relatively quickly and produces a $600,000 recovery, a one-third contingency fee would equal approximately $200,000. Had the same case been handled hourly and settled after relatively limited litigation, the hourly fees might have been considerably less.

On the other hand, the attorney accepting the case at the outset did not know that it would resolve quickly – or even that it would succeed. The contingency percentage compensates the attorney not merely for the hours ultimately worked, but also for accepting the risk that those hours could produce no fee whatsoever.

For clients who can comfortably finance litigation, an hourly arrangement may therefore sometimes be preferable. For clients who cannot afford to fund a substantial will contest, a contingency arrangement may make litigation possible in the first place.

Not Every Strong Will Contest Will Be Accepted on Contingency

A prospective client should not interpret an attorney’s refusal to accept a case on contingency as necessarily meaning that the attorney believes the case has no merit.

There are numerous reasons why a law firm may decline a contingency arrangement. The potential recovery may be too small relative to the anticipated work. The estate’s assets may be difficult to value or collect. The case may require unusually expensive experts. Important witnesses may be unavailable. The statute of limitations or other procedural issues may create additional risk. The law firm may simply lack the resources at that particular time to finance another lengthy contingency case.

Contingency representation requires a law firm to allocate its own attorneys, staff, and resources to litigation that may continue for months or years without generating any revenue. As a result, even meritorious cases must be evaluated from both a legal and economic perspective.

What Information Should I Bring to a Contingency Fee Consultation?

The more information an attorney has, the better they can evaluate whether a will contest is appropriate for contingency representation.

Useful materials commonly include the disputed will and any prior wills; probate pleadings and court orders; information concerning the approximate value and composition of the estate; relevant medical records; communications between the decedent and the beneficiaries; emails, text messages, letters, or other communications involving the person alleged to have exercised undue influence; names and contact information for important witnesses; and a chronology of significant events leading up to the execution of the disputed will.

You should also be prepared to explain what you would inherit if the challenged will were invalidated. This is particularly important because invalidating a will does not necessarily mean that the contestant receives the entire estate. An earlier will may control, or the estate may pass under Texas intestacy law.

The attorney can then compare the probable recovery against the strength, complexity, expense, and risks of the case.

What Should a Contingency Fee Agreement Address?

A contingency fee agreement should clearly explain how the attorney will be compensated and how litigation expenses will be handled.

Among other things, the agreement should identify the percentage of the recovery payable as an attorney’s fee, explain what constitutes a “recovery,” address whether the percentage changes if the case proceeds to trial or appeal, and specify how costs and expenses are treated.

The agreement should also explain whether expenses are deducted before or after calculating the attorney’s percentage. This distinction can affect the client’s ultimate net recovery.

Before signing a contingency agreement, the client should understand both what the attorney receives and what the client can reasonably expect to receive if the case succeeds.

Is a Contingency Fee Right for My Will Contest?

There is no universal answer. Each will contest presents a different combination of evidence, potential recovery, legal issues, litigation expenses, and risk.

The strongest contingency cases generally combine several favorable characteristics: a legally viable challenge to the will, substantial assets at stake, persuasive evidence supporting the challenge, a meaningful potential recovery for the client, identifiable assets from which that recovery can actually be obtained, and litigation costs that are reasonable in relation to the amount at issue.

Cases involving undue influence, fraud, lack of testamentary capacity, or forgery can sometimes satisfy these requirements, but the existence of one of these allegations alone does not make a case appropriate for contingency representation.

Ultimately, the decision requires an individualized evaluation of both the legal merits and the economics of the litigation.

If you are considering a will contest but are concerned about the cost of hiring a probate litigation attorney, contact us to discuss your case and the available fee arrangements. Depending upon the facts, value of the potential recovery, and strength of the available evidence, contingency representation may provide a way to pursue a valid inheritance claim without paying substantial attorney’s fees at the outset.