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How Who Pays Legal Costs When Contesting a Will is Determined

Arguably, the last consideration by either party when contesting a will is: Who pays the legal costs? 

As with all litigation, costs will be incurred. And while an eligible person with a reasonable claim (plaintiff) can be confident the court will consider their position and allocate costs to the defendant (the estate), there are times when this is not the reality. How are the legal costs of contesting a will and who pays them determined? 

Who pays legal costs after a successful will contestation?

A successful family provision claim doesn’t always result in the estate paying the legal costs of the inheritance claim. 

Why? Under Section 99 of the Succession Act 2006, the court has discretion in respect to the cost orders it may make. It’s important for both parties of an estate dispute to understand that the “usual order as to costs” in unsuccessful family provision claims is not a given. What does court-ordered costs mean for the eligible person who was left out of a will or the deceased estate’s trustee? What could it mean to the estate defending the testamentary capacity of the deceased in will dispute proceedings?

Legal costs of contesting a will

There are fees to file and court costs involved in disputing an estate will. However, the main cost to both parties will be legal representation. That is why it is vital to engage a will dispute lawyer who will guide you through the process and expertly advocate in your best interest in mediation and litigation proceedings. 

How much contesting a will costs depends on whether the estate dispute is resolved sooner (in mediation) or later (in litigation). 

How much you will ultimately pay in legal costs depends on:

  • The state in which you make your claim. Every area has its own set of factors for determining an eligible person to contest a will and a different timeline in which to challenge a will. 
  • The payment arrangement you have with your will dispute lawyer. If you pay by the hour, that could range from $300 an hour or more. If you appoint a no-win, no-fee will and probate lawyer, your upfront costs will not be as much of a concern. 

 

Regardless of your situation, it’s important to keep in mind that your lawyer’s costs (i.e., legal advice, expert witnesses, medical reports and valuations) will need to be covered, regardless of the outcome. Given that the court has greater sway over whether or not the unsuccessful party is responsible for covering all or partial legal costs of the other party, it is important to grasp the court’s role in cost orders.

What is the court’s role in the legal costs of contesting an estate?

In will disputes, the court has a greater role in determining who pays the legal costs of contesting a will because of Section 99 of the Succession Act 2006. Basically, whether you are a plaintiff contesting a will or the deceased estate, the Court makes costs orders. It’s important to note that in family provision cases cost orders don’t automatically require the unsuccessful party to pay legal costs. 

A family provision application is made to the Supreme Court in:

In contrast to other states, under the Administration and Probate Act of 1958 a “Part IV claim” or family provision claim can be made to either the County Court or the Supreme Court of Victoria.

Your will dispute lawyer can help you navigate the local family provision laws.

When does the court regulate the costs the deceased’s estate pays?

In family provision cases, the court makes costs orders based on the case itself, and the conduct of the parties in litigation. A court’s decision on costs orders may result from the following:

  • The unsuccessful plaintiff is made to pay the legal costs of the defendant because the claim was “frivolous, vexatious, made with no reasonable prospects of success”: Re Sitch (No 2) [2005] VSC383.
  • An unsuccessful plaintiff was guilty of “improper conduct” during court proceedings: Re Sitch (No 2) [2005] VSC383
  • The estate may be ordered to pay the unsuccessful plaintiff “if in all the circumstances the case was meritorious, reasonable or “borderline”: McDougall v Rogers; Estate of James Rogers; Re Bodman [1972] Qd R 281; Shearer v The Public Trustee (NSWSC, Young J, 21 April 1998, unreported).
  • Neither party is entitled to legal costs based on the merits of the family provision application. 
  • Cost orders by the court will be proportionate to the size of the estate: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843. 

 

There are other situations that determine who pays legal costs when contesting a will but the main takeaway for a plaintiff is that if your application has merit then challenging a will successfully will most likely result in the court ordering the estate to pay your legal costs.

Can the court regulate the costs an estate pays?

Section 99 of the Succession Act offers the court the ability to regulate the amount an estate can pay in relation to legal costs. When challenging a will, the court has the ability to fix the maximum costs for legal services that can be paid by the deceased’s estate. 

In NSW, the court is able to cap the costs paid by small estates where “the net distributable value of the estate (excluding costs of the proceedings) is less than $500,000” according to the Practice Notes for family provision. In Victoria, the court may order payment by the estate for standard costs but not the full legal costs incurred, particularly if the plaintiff has been unwilling to compromise or sought to draw out proceedings and waste the court’s time.

When considering contesting a will because you were not adequately provided for in the deceased’s will, or there is evidence of a lack of testamentary capacity in writing the will, remember that the court has it within its power to regulate legal costs of the estate, which could result in no payment of legal costs at all. 

The possible court orders for who pays legal costs in a family provision case could be:

  • Both parties pay their legal costs.
  • The estate pays the costs for both parties.
  • The estate pays for part of the costs on a particular issue.
  • The plaintiff pays for part of the costs on a particular issue.
  • The losing party pays the winning party.

 

If you require assistance with a family provision claim, reach out to our will dispute legal team today.

At Gerard Malouf & Partners, we offer a no win, no fee scheme that can ensure you are focussing on the case instead of the costs. We understand the very sensitive and distressing circumstances of a will dispute. That’s why we are pleased to introduce a fixed fee arrangement that will reduce or eliminate the financial exposure and risks for our will and inheritance dispute clients. Contact us today.

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Contesting Wills
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