Who pays the costs of a family provision claim?

Published 01 Sep 2017

When you make a claim for injuries you've suffered in a car crash or an accident in a public place, it's easy to know who usually covers your compensation and legal costs if you're successful - an insurer.

But who pays your legal fees when you're contesting a will through a family provision claim? And who is responsible for covering the costs that the executor incurs if they choose to defend your claim?

The Succession Act 2006 (NSW) sets out the relevant legislation regarding the costs of proceedings, so here is a brief summary of how costs are paid before, during and after a family provision claim.

Upfront and ongoing costs

Pursuing a claim means you will encounter a number of upfront costs, including your lawyers' fees, court charges and other expenses related to administration.

However, choosing a no-win, no-fee firm means you can avoid these costs, as your lawyers will cover everything from your initial consultation through to defending your case in court. In fact, you will only be required to pay the money back if a settlement goes in your favour.

So, a firm such as Gerard Malouf & Partners Will Dispute Lawyers pays the costs you would usually incur before and during your family provision claim, as well as footing the bill if you are unsuccessful.

Who pays my costs if I win?

Your legal costs and those of anyone defending the case are usually borne by the estate or the notional estate of the deceased. In other words, judges usually make an order that the fees are subtracted from the value of the assets available for distribution.

The 'notional' estate refers to property that may not technically form part of the deceased's estate but can be classified as so for the purpose of a claim, such as superannuation funds.

However, anyone who has read the Charles Dickens novel Bleak House will know that lengthy legal proceedings can significantly eat away at the value of an estate. The book details an inheritance dispute between warring family members that lasts for generations and devours a sizeable estate.

In real life, the Succession Act in NSW allows the courts to set a maximum cost for legal services that the estate or notional estate will pay out. As such, claimants may be required to cover any additional fees from their own pocket, although this is extremely rare.

Would you like to know more about legal fees and family provision claims? Please get in touch with Gerard Malouf & Partners Will Dispute Lawyers.

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