Attorney fees are not necessarily awarded to every successful litigant, and they may only be awarded when they are provided for by statute or contract. Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425, 431 (Mo. 2013). Section 456.10-1004, RSMo generally permits a court to award attorney fees to be paid by any party or the underlying trust. Historically, litigation expenses were chargeable against another party only in “the case of egregious conduct such as bad faith or fraud.” See UTC Commentary to Section 1004. More recently, however, Missouri courts have found that “Section 456.10-1004 does not require a finding of intentional misconduct.” O’Riley v. US Bank, NA, 412 S.W.3d 400, 419 (Mo. Ct. App. 2013).
Numerous arguments can and may be made in support of an attorney fee request. A prominent argument is that it is necessary to “balance benefits.” Nix v. Nix, 862 S.W.2d 948, 952 (Mo. Ct. App. 1993). Another prominent argument is that fees are necessary for a party who protects, preserves or increases a common fund in which multiple beneficiaries have an interest. Jesser v. Mayfair Hotel, 316 S.W.2d 465 (Mo. 1958); UTC Commentary to Section 1004 (“[t]he court may award a beneficiary litigation costs if the litigation is deemed beneficial to the trust”).
There are other situations in which an award of attorney fees may be compelled. “A trustee is entitled to reasonable attorneys’ fees, to be paid out of the trust estate, incurred in good faith in defending his administration of the trust.” Klinkerfuss v. Cronin, 199 S.W.3d 831, 845 (Mo. Ct. App. 2006). As such, a trustee who has a good faith basis for opposing his or her removal is typically entitled to recover attorney fees and costs. Id.