WHO PAYS FOR THE ATTORNEY FEE IN A DISPUTE
Who has to pay the attorney fee in a civil dispute? The general answer is it all depends. Oklahoma follows the American rule. This means that each litigant bears the cost of his or her own attorney fee unless a specific statute or contract provides that the loser pays the attorney fee. There is an exception for a bad faith lawsuit. This means if you do not have a reasonable reason based on the facts and the existing law to file suit, then you could have to pay the other side’s attorney fee. Also, if you somehow act in bad faith during the litigation, you could have to pay the other side’s attorney fee.
The loser does not have to pay the winner’s attorney fee in a will contest, if the protest to the will was made before the will was admitted to probate. It is important to seek legal advice quickly if you intend to contest a will. Once a will is admitted to probate, it is still sometimes possible to contest the will, but the loser has to pay the winner’s attorney fee. Wills can be contested on lack of proper execution, fraud, undue influence or competency.
The winner can be awarded an attorney fee in a trust lawsuit. The district court has the right to interpret the terms of a trust, make a trustee account to the heirs, remove a trustee or to set aside a trust which lacks proper execution, or was executed under fraud, undue influence or while incompetent. The judge has discretion to award an attorney fee to the winner. The attorney fee can be ordered paid out of the trust estate itself or against the loser individually.
The attorney for the guardian is entitled to an attorney fee to be paid out the guardianship estate. The attorney for the ward, the subject of the guardianship, is entitled to an attorney fee to be paid out of the guardianship estate. If someone petitions for a guardianship over someone in bad faith, he or she can be liable for damages, which could include the attorney fee to defend against the appointment of a guardian. Anyone else involved must pay their own attorney fee.