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Costs Of Contesting A Will In Australia

The cost of contesting a will in Australia varies depending on the specifics of the claim. Some solicitors work on a “no win, no fee” basis. Where there is no such agreement, there can be considerable upfront legal costs. The type of claim and the willingness of parties to negotiate will directly impact the expense involved in making a claim. The merits of the case and the conduct of the parties also impact the question of who pays the costs associated with the matter. A claimant needs to be aware that if they are unsuccessful, they will likely be responsible for their own costs and also for covering the costs of the estate defending the motion. This article outlines the role of costs in succession law.

Contesting A Will In Australia

A person should contest a will if the testator had a moral responsibility to provide support to them, and this responsibility was not reflected in the provisions of the will. A claimant files with the Supreme Court of the state or territory for a judicial reassessment of the testator’s will, in the hope that the court will order a provision that reflects the claimant’s entitlement.

Before lodging an application with the court, the claimant needs to make the executor of the estate aware of their intention to dispute the provisions of the will. This serves as notice to the executor to halt distribution of the deceased estate, and opens communication between the parties in the hope that a solution can be reached without the expensive costs associated with a court hearing. A claimant can often, with the help of a solicitor, resolve a claim by negotiating directly with an executor, or through a court-appointed mediator.

What Are Costs?

“Costs” are incurred through the pursuit or defence of a legal action. For instance, an executor defending a deceased estate will typically engage a solicitor for legal advice and representation. An executor is not personally responsible for the costs associated with the legal action, as the estate will pay the fees. In contrast, a claimant is responsible for their own legal expenses except when there is a judicial order that the estate reimburse the claimant’s costs. Indeed, a Supreme Court can order that either party in a civil proceeding pay for the expenses of the other party. These costs are typically awarded at the conclusion of the litigation, in either a fixed amount or percentage. Anyone contesting a will needs to do so with the awareness that they may not have their legal costs recouped from the estate, and in fact, costs may be awarded against them.

Costs Of Contesting A Will: Mediation Costs

If the parties can reach an agreement during mediation, the claimant will receive an amount in settlement. The claimant is responsible for paying their own legal fees for any advice and representation incurred during mediation, and costs are generally not awarded during pretrial action.

Costs Of Contesting A Will: Standard And Indemnity Costs

Costs are either assessed on a standard or indemnity basis. Standard costs only cover some of the debt that the claimant incurred, to a degree that is sufficient to defend the party’s rights. Typically, standard costs are awarded when the court judges that the party is entitled to some recompense for their incurred costs, but not to the full degree given the circumstances. This may be because the costs submitted to the court are deemed excessive or the claimant has in some other way behaved contrary to court standards.

Alternatively, the court might order that a claimant’s costs be assessed on an indemnity basis. Indemnity costs are “reasonable costs” calculated according to either a scale of fees, a solicitor’s cost agreement, or standard charges for solicitors. Indemnity costs usually reimburse the claimant for the majority of incurred expenses.

In civil litigation, costs typically follow the event, so the losing party reimburses the costs of the other party. This is not always the case with contested will litigation, where the court makes cost orders based on the overall justice of the case. When assessing costs, the court will have reference to the conduct of both parties, the reasonableness of the claim and the impact that awarded costs will have on each party. The court will particularly focus on whether the legal costs were incurred through wasting time and an unwillingness to negotiate. The court will also consider whose behaviour caused the action in the first place. For instance, the court will take note if a claim came to trial because a testator failed to make provision for someone with a statutory entitlement, or if an executor refused to negotiate fairly with a claimant prior to trial.

The costs of contesting a will in Australia can be considerable, with no guarantee of success. The contested wills team at Armstrong Legal can advise you on your likelihood of success given your particular circumstances, and will help you negotiate with the executor to avoid the cost of trial. Please call 1300 038 223 to discuss your case or contact us to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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