Costs of Challenging a Will (Qld)

 When a person challenges the validity of a deceased person’s will in Queensland, this can result in the court making an order for costs. This page deals with costs orders in estate litigation in Queensland.

Costs generally

The general rule about costs in legal proceedings is that costs are at the discretion of the court but usually “follow the event”. This means that the successful party will usually have their costs paid by the unsuccessful party, but this is a matter for the discretion of the judge who decides the case.

Costs in estate litigation

In estate litigation in Queensland, including will challenges, the court’s discretion is not limited, but the court can specifically take the following factors into account when deciding how to award costs:

1. The value of the estate (or, if only part of the estate is disputed, the value of the disputed part of the estate);
2. Whether costs have been increased because one or more of the parties did not comply with the rules of the court or a practice direction;
3. Whether the costs have been increased because one or more of the parties argued about unmeritorious issues, did not admit or concede facts or points where appropriate or focused unnecessarily on minor or peripheral issues; and
4. An offer of settlement made by a party to the proceeding.

After the above factors are taken into account, costs are at the discretion of the court.

Exceptions

There are two exceptions to the general rule that costs follow the event which can apply in proceedings brought to challenge a will. These exceptions are:

1. Where the deceased person caused the legal proceedings (for example through their statements or conduct, or by not having their affairs in order). In this situation the unsuccessful party may have their costs paid out of the estate.
2. Where the facts of the case are such that there are reasonable grounds for opposing the will. In this situation the unsuccessful party may not be forced to bear an order that they pay the other party’s costs.

If a will is challenged without reasonable grounds, it is likely that the usual rule will apply and costs will “follow the event”. This means the unsuccessful party will probably be ordered to pay the successful party’s costs. Because of the risk of having a costs order made against you, it is important to get legal advice if you are considering challenging a will.

How much am I likely to pay in costs?

There is no average cost of challenging a will. The cost of litigation will depend on whether the matter is resolved quickly or whether a lot of evidence needs to be called.

When are costs awarded?

Under the Uniform Civil Procedure Rules 1999, courts can award costs at any time, but are generally awarded after proceedings have concluded.

Seek legal advice

If you are considering challenging a will in Queensland, contact Armstrong Legal for specialist advice about all aspects of the process, including your prospects of success, the likely duration of proceedings and the costs orders likely to be made.