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Robert H. McNair, As Co-Executor of The Estate of W. O. McNair v. Richard

The trial court erred in awarding attorney fees to appellant in a will contest because the superior court made several findings of fact based on conduct that occurred while the case was under the jurisdiction of the probate court, prior to the appeal of the probate court's order to the superior court, and there was nothing in the record to show that motions appellant's counsel filed lacked merit or were frivolous and no evidence to support a finding that appellant conducted himself improperly in the superior court, unnecessarily expan

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Reese, Judge. In the third appearance of this case before this Court, Robert H. McNair (“the Appellant”) appeals the award of attorney fees against him individually,[1] in relation to the jury trial on his petition contesting the will of Hazel McNair (“H. McNair”).[2] For the reasons set forth infra, we reverse.

The following are the pertinent facts from the record. Upon the death of H. McNair, her will dated September 17, 2001, was filed for probate in solemn form in the Turner County Probate Court in November 2011. Two co-executors, Richard McNair and Penny Thompson (“the Appellees”), were appointed under H. McNair’s will.H. McNair’s brother, W. O. McNair, filed a caveat to the probate of her will. The Appellant, W. O. McNair’s son, filed an affidavit with the caveat. After a hearing, the probate court issued an order on June 12, 2013, denying the petition to probate the will in solemn form. The Appellees filed a notice of appeal of the probate court’s order in the Superior Court of Turner County on June 21, 2013.

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