Contesting a Will Cost

What is the Average Contesting a Will Cost and How to Manage It

Understanding Contesting a Will Costs

Generally, the costs of a successful application are paid out of the estate, though the court may order payment of costs as it sees fit. If you believe the will is incorrect, it’s crucial to understand the financial implications of your claim. Legal expenses can vary greatly, so consulting a wills lawyer about typical costs and who pays is advisable.

The cost of contesting a will can vary depending on the complexity of the case and the time required to resolve it. Legal costs can include solicitor fees, court fees, and other expenses.

Contesting a will can be complex and the costs can vary significantly based on several factors. These include the type of claim, the willingness of executors to negotiate, and any complicating factors. Each case is unique, making it difficult to provide a precise cost estimate.

It is essential to understand the costs involved in contesting a will to make an informed decision about pursuing a claim.

Types of Costs Involved in Contesting a Will

• Solicitor fees: law firms charge for their services, and the cost can vary depending on the complexity of the case and the legal proceedings.
• Court fees: filing fees, court hearing fees, and other expenses are incurred during court proceedings.
• Other expenses: expert witnesses, medical reports, and valuations may be required, adding to the overall cost.
• Incurring expenses: the estate may incur expenses, such as filing fees, which can be delayed until the successful outcome of the claim.

Who Pays the Costs of Contesting a Will?

• The estate may pay the legal costs of the applicant if the claim is successful.
• The applicant may be responsible for their own legal costs if the claim is unsuccessful.
• The court has discretion in determining who pays the costs of contesting a will.
• The losing party may be ordered to pay the other party’s costs.

Managing Legal Fees in Contesting a Will

Some cases involve litigation, while others may settle before court proceedings. Your lawyer can advise if litigation is an option based on your reasons for contesting the will. In some instances, mediation may result in a settlement agreement, with legal expenses covered by the settlement fund instead of out-of-pocket or from the estate.

• A ‘No Win, No Fee’ arrangement can help manage legal fees, but it’s crucial to understand the terms and conditions.
• A Deferred Payment Plan can allow clients to pay for services out of settlement money.
• Law firms may charge an uplift fee (up to 25% of winnings) if the case wins or settles.
• It’s essential to seek legal advice to understand the costs involved in contesting a will.

The Role of the Court in Contesting a Will

• The court has discretion in determining who pays the costs of contesting a will.
• The court can order the estate to pay the applicant’s legal costs if the claim is successful.
• The court can also order the applicant to pay the estate’s legal costs if the claim is unsuccessful.
• The court’s role is to ensure that the costs of contesting a will are fair and reasonable.

Family Provision Claims and Contesting a Will

• A family provision claim is a type of claim against a deceased estate.
• Those who are allowed to make a claim include the deceased’s current spouse or partner, a former partner under certain circumstances, children and some dependents.
• The court can order the estate to pay the applicant’s legal costs if the claim is successful.

Differences Between Estate Litigation and Other Types of Litigation

Estate litigation is distinct from other forms of litigation due to several unique factors:

1. Nature of Disputes: Estate disputes often arise from the actions of the testator or residuary beneficiaries (those who receive assets not specifically left to another beneficiary).
2. Executor and Trustee Duties: Courts aim to ensure executors and trustees can perform their duties without fear of incurring personal costs. Therefore, they are typically indemnified for reasonable costs, including legal fees.
3. Justifiable Litigation: There are valid reasons to question aspects of a will, such as the testator’s capacity or the will’s execution. In such cases, courts may deem the litigation justified and not order costs against the unsuccessful parties.

By understanding these nuances, you can better navigate the complexities of contesting a will.

Capped Costs Paid by the Estate

The Court has the authority to order that only a portion of legal costs be paid from the estate. In Nudd v Mannix [2009] NSWCA 327, the trial judge deemed the appellant’s/plaintiff’s costs as “grossly excessive” given the estate’s size. On appeal, the appellant received a legacy of $120,000, and her costs were capped at $60,000 (reduced from $82,200), contingent on her solicitors agreeing not to seek any additional costs from the appellant/plaintiff beyond what was recovered from the estate.

Similarly, in Poche v Poche [2020] NSWSC 835, the plaintiff incurred costs of $627,000. Justice Henry ordered that the successful plaintiff receive an additional provision of $350,000, with the claim’s costs capped at $125,000, to be paid from the deceased’s estate.

The potential cost consequences can significantly influence the conduct and strategy of claimants and executors in Family Provision Applications (FPA) proceedings. If you are an executor or need advice regarding FPAs, including the cost implications of pursuing or defending such claims, please contact us.

Reducing Costs in Contesting a Will

Contesting a will can be time-consuming, expensive, and stressful. If not managed carefully, legal costs could equal the inheritance you stand to gain. Typically, contesting a will means paying all legal costs and associated fees out of pocket, even if your case is unsuccessful.

• Negotiation is preferable to court proceedings, as it can reduce legal costs.
• A settlement agreement can include provisions concerning payment of each party’s legal costs.
• It is essential to litigate matters efficiently and without delay to reduce costs.
• Seeking legal advice can help reduce costs by understanding the costs involved in contesting a will.

Conclusion

• Contesting a will can be a costly and complex process.
• Understanding the legal costs involved and managing legal fees is crucial to making an informed decision about pursuing a claim.
• Seeking legal advice can help reduce costs and ensure that the costs of contesting a will are fair and reasonable.

Do you need help contesting a will in QLD?

If you’d like a free initial consultation to discuss your particular circumstances you’re invited to make a booking via this page. Key questions we will ask centre on:

• Have you have been left without adequate provision for proper maintenance?
• Testamentary capacity – Did the deceased person have mental capacity at the time the will was written or amended?
• Public trustee – Is the Public Trustee involved?
• Do you understand we work on a fee basis? This means you will be charged legal fees and legal outlays incurred – for example unavoidable disbursements, like the court fee for filing the application.
• You will almost certainly be required to use a mediator, another outlay of costs incurred.

It is crucial to recognize that the deceased’s estate must be substantial enough to justify disputing the will. If we determine that the estate isn’t significant enough for a dispute, we will inform you during your first obligation-free consultation.

Typically, the costs to contest a will are deducted from the settlement amount paid out by the estate. Our fees vary based on the specifics of each will dispute, so it’s best to consult with one of our expert will dispute lawyers to understand the likely fees for your situation.