How much will it cost to contest a will?

How much will it cost to contest a will or challenge a will when the majority of the deceased estate is located in NSW?

We follow a 6-step process when contesting a will or challenging a will. The first step involves the client (you) contacting us and the second step involves a free assessment. You will have no obligations at this stage and if you decide not to continue with your family provision claim you will not be charged anything at all.

During your free assessment we will ask you a series of questions that are designed to provide us with an understanding of your unique situation. We will then be able to determine the best course of action to take. At this stage we will also be able to provide you with an indication of the costs involved in pursuing that course of action. We will be able to give you a better estimate of costs when we have a clearer understanding of your situation.

1. How do you determine the costs involved in challenging a will?

Determining how much it will cost to bring your claim is very difficult. Your costs will vary depending on factors such as:

• How willing the executors are to negotiate
• Whether there are complicating factors
• The type of claim you are bringing

We believe that your financial position should not prevent you from achieving justice. In line with this philosophy, we perform most of our work on a ‘No Win, No Fee‘ basis.

2. What is a ‘No Win, No Fee’ arrangement?

Under a ‘No Win, No Fee‘ arrangement, payment of your legal costs are delayed until the successful outcome of your family provision claim.

If your claim is successful

In the event that you are successful your legal costs are generally paid ultimately from the funds within the Estate, not from your pocket.

In the process of running your case we will need to incur expenses on your behalf. For example, to initiate a claim in court you need to pay a filing fee. We will always try and delay these costs for you. For example, we usually apply to the court to have your filing fee postponed. Despite our best attempts we are not always able to delay all payments to third parties. You may need to make small outlays along the way. It is our practice to advise you of any unavoidable disbursements before they are incurred.

If your claim is unsuccessful

Under a ‘No Win, No Fee‘ agreement if your claim is not successful you do not pay any of your legal fees. However, commencing court proceedings is not without risk. If your case is one of the few that require a court hearing then you should be aware that if you are unsuccessful, the court is capable at it’s discretion of directing you to pay the other party’s costs. To date, none of our clients have ever had to pay a costs order. We have avoided such costs orders against our clients because we thoroughly examine the merits of their claim before considering initiating legal proceedings and monitor your case once it has commenced to advise as to prospects of success.

After our initial free assessment we present you with a “Client Services Agreement“. This is a written document that sets out the work we are going to do for you and thoroughly explains exactly how our legal fees are calculated.

Fear of legal costs should not discourage you from seeking correct advice from our Contested Wills & Estates team.

3. What happens after the free assessment?

After our initial free assessment we will present you with a ‘Client Services Agreement‘. This is a formal written document which thoroughly explains exactly how legal fees are calculated and provides you with an indication of the costs involved in contesting a will or challenging a will.

4. Does the estate have to pay the legal costs when the will is challenged?

The answer to this question depends on the circumstances of each will challenge case. The general rule in court proceedings is that the unsuccessful party must pay their own legal costs as well as the legal costs of the successful party.

However, in recent years this general rule has been modified by the court in cases involving a contest or challenge to a will, specifically in relation to whether the legal costs are paid by the estate. There have been numerous Supreme Court decisions on this issue, which have produced a set of principles, that, when applied, determine if the legal costs are paid by the estate:

• If the circumstances of the case reasonably called for an investigation to be made before the court could properly pronounce in favour of the Estate. This includes situations where the conduct and habits of the deceased have given ground for questioning the deceased’s testamentary capacity (see Challenging a will for more info).
• If the deceased, or a person interested in the residue of the Estate, has by their conduct, caused the litigation to occur, the costs of a party unsuccessfully contesting the will may be ordered out of the estate.

The one exception to the principles stated above is where the will is unsuccessfully challenged on the basis of fraud or undue influence (see Challenging a will) and there were no reasonable grounds for the challenge. In these circumstances, the Court rarely orders that the unsuccessful parties’ legal costs be paid by the estate, which means the unsuccessful parties will have to pay their own legal costs.

If you are contemplating contesting a will or challenging a will, or you are an executor who is faced with defending a will, you should always seek legal advice before taking action so you can determine whether your legal costs are likely to be paid by the estate. Contact our Contested Wills & Estates team or complete our online questionnaire.