The opinion of the court was delivered by: Justice Maag
Appeal from the Circuit Court of St. Clair County.
Honorable Jerome P. Lopinot, Judge, presiding.
Agnes M. Pfoertner died September 2, 1991. Her last will and testament was admitted to probate on October 7, 1991. On March 31, 1992, an action contesting the will was filed by attorney Bernard J. Ysursa on behalf of several heirs. The appellants in this case, all heirs of the deceased, were named as respondents in the petition to contest will.
The will contest was grounded on the fact that the will of Ms. Pfoertner gave substantially all of the estate to the attorney who drafted the will, with only minor exceptions. On February 27, 1997, the circuit court granted summary judgment in favor of the petitioners and set aside the will, and the estate passed under the laws governing intestate estates.
On May 12, 1997, an unsworn petition to distribute net assets, signed by Bernard J. Ysursa, was filed with the trial court. In the petition, Ysursa asked that he be allowed to deduct from each heir's share of the estate one-third of each share for his attorney fees in the will contest. Ysursa also asked the court to allow him to recover a proportional share of the will contest costs from each share of the estate. Later, he modified this position and argued he was entitled to one-third of the appellants' share of the estate over the amount they would have recovered under the will, together with a proportional share of the costs. This claim was based upon what is known as the "common fund doctrine".
Appellants filed objections to the petition to distribute net assets, challenging Ysursa's right to collect part of his fees and costs from their shares of the estate. A hearing was held on September 19, 1997, and the evidence introduced in the hearing included in part the following:
• The appellants were not contacted by Ysursa to be represented by him.
• The appellants did not sign an agreement or orally agree with Ysursa to be represented by him.
• The contingent fee agreement was not in writing, and there was some uncertainty about the exact terms of the agreement.
• Ysursa did not keep time records with respect to his work and did not offer any evidence as to the time spent on the litigation.
• Certain appellants' shares of the estate were only increased slightly.
On November 3, 1997, the court overruled the objections and granted ...