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Costs Of Contesting A Will (NSW)

There can be considerable costs associated with contesting a will in New South Wales, ranging into the tens of thousands for complex litigation. Armstrong Legal offers a “no win, no fee” arrangement to clients so that the daunting prospect of paying these costs upfront does not deter deserving claimants from receiving their proper entitlement. In fact, if a claimant is successful at trial, the court may award them “costs” to cover the fees incurred in pursuing the claim. This article explains the role of costs in contesting a will in NSW.

Contesting A Will in NSW

An eligible claimant can contest a will if they received insufficient provision from a deceased estate. The claimant must file a Family Provision Claim within the time limit with the Supreme Court of NSW. The court will assess the case according to a number of criteria, and if successful, will order a redistribution to provide the claimant with either a share or a larger share of the estate.

Contesting an estate starts with the claimant informing the executor of the estate of their intent to dispute the will. This notifies the executor that they must stop any distribution of the estate’s assets pending the outcome of the Family Provision Claim. At this stage, many claims will actually be settled without incurring further costs. It is common for pragmatic executors to settle a Family Provision Claim without any court hearings, either as the result of negotiations between the claimant’s solicitor and the executor or during pre-court mediation.

What Are Costs?

Costs are the expenses that accrue from the pursuit or defence of a legal matter. The size of costs in each matter will vary depending on the type of claim, the number of complications and whether the parties are open to negotiation. Costs are ordered as either a fixed amount or percentage.

Who Pays the Costs of Contesting a will?

An executor is charged with defending a deceased estate against challenges or contests and in the normal course of events the estate pays their legal costs. However, the executor is only entitled to defend the estate when this defence is warranted. An executor should not refuse to settle a valid claim as this will unnecessarily expose the estate to legal costs.

A claimant is responsible for his or her own costs unless the court orders a reimbursement. In fact, the court may order either side in a civil case to pay the costs of the other party. Costs typically “follow the event” in civil proceedings, whereby the losing side pays the costs of the winning side. However, cost orders in contested estate cases are treated differently because they are awarded on the basis of justice, rather than on the basis of a civil wrong on the part of the executor or estate.

In the case of a Family Provision Claim, the court will consider the impact of awarding costs on the parties involved, and whether the costs were sustained because either party wasted time or was unwilling to negotiate. It will also be a point of consideration if the testator made inadequate provision for a clearly entitled person, or the executor failed to reach a pre-trial settlement with someone with a valid claim against the estate.

Anyone who is thinking of contesting a will must be aware that they may not be awarded costs, even if they are successful in their claim. In fact, if their claim is judged to be spurious, the court may order the claimant to repay the estate for the cost of defending the action.

Mediation Costs of contesting a will

The estate often covers the costs associated with mediation, including the fees of the mediator. In the event that the parties reach a settlement at mediation, the claimant will receive an agreed-upon amount from the estate. From this sum, the claimant will have to pay their own costs for legal advice and representation at mediation.

Difference Between Standard And Indemnity Costs

Costs are ordered on either a standard or indemnity basis. Standard costs are designed to recompense incurred debt to a degree that is appropriate to defend the rights of the party. A standard cost order is common when the submitted costs are excessive or the party offended the court in some way, such as by wasting the court’s time. Indemnity costs are reasonable costs according to a solicitor’s cost agreement, standard solicitor charges or a scale of fees. This type of costs order will typically cover most of the party’s costs and fees.

The costs associated with contesting a will in New South Wales can vary greatly depending on whether negotiations go well before the matter proceeds to trial. Our contested wills team has the experience to successfully represent your interests in these preliminary stages. They can also advise you of the relative merits of continuing on to a Court hearing, given your likelihood of success and accrued costs. Please contact Armstrong Legal on 1300 038 223 to talk to one of our experienced team.

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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