In short, no. Virginia does not recognize the doctrine of judicial instructions, which permits an award of attorney’s fees from the estate when beneficiaries must ask a court to clarify ambiguity in a will or trust. Even if this were recognized, such an award would be improper when the beneficiaries have asserted the language of the testamentary instrument is clear and unambiguous throughout the litigation.
Also in the case of Freeney v. Freeney, No. 170031 (Va. Apr. 12, 2018), the attorneys for the remainder beneficiaries argued that the circuit court also erred by failing to award attorney’s fees under the doctrine of judicial instructions. That is, “[if] judicial instructions are needed to interpret an ambiguous will or trust, all expenses of that litigation, including attorney’s fees, are to be paid by the estate.” W. Hamilton Bryson, Bryson on Virginia Civil Procedure Section 14.04 at 14-15 (5th ed. 2017). This doctrine had not been recognized by the Virginia Supreme Court previously. See DuPont v. Shakelford, 235 Va. 588, 596 (1988). The Court declined to do so in Freeney. Moreover, the Court opined that even if it had decided to recognize the doctrine, it would not have awarded fees to the plaintiff beneficiaries here because they had argued, even stipulated, that the language of the residuary clause at issue was plain and unambiguous.
In summary, the doctrine of judicial instructions does not apply in Virginia to compel an estate to pay attorney’s fees to construe the language of an ambiguous will or trust. So if you must sue to have a judge interpret a will or a trust, you will be paying your own attorney's fees.
The EFM Lawyer.