Costs Of Contesting A Will (Qld)
Anyone who intends to file a Family Provision Application needs to do so with an awareness of the costs of contesting a will in Queensland. Although some solicitors will represent claimants on a “no win, no fee” basis, other solicitors will charge significant fees with no guarantee of recovery through a successful outcome. In fact, the court can order that a claimant reimburse the estate for the costs incurred in defending the claim. This article explains the issue of costs and further illustrates through a case study the role of the Supreme Court in assigning costs.
What Is A Family Provision Application?
The Succession Act 1981 allows spouses, children and some dependents to dispute the provisions of a testator’s will if the deceased has not made sufficient provision for the claimant’s proper maintenance and support.
Before the claimant lodges a Family Provision Application, they need to notify the executor of the estate of their intention to contest the will. This is an essential first step because it prevents the executor from distributing the assets of the estate after the limitation date. This is also an important opportunity to negotiate with the executor to reach a compromise for settlement without recourse to expensive court action. A skilful solicitor can often assist a claimant to resolve their claim at this stage without the need to file a Family Provision Application at all or help to settle the matter at the pre-trial mediation. It is generally preferable for all concerned to avoid court action, but a trial may be necessary if the executor proves unwilling to negotiate a just outcome.
What are the costs of contesting a will?
The court grants “costs” for expenses that were incurred by pursuing or defending a legal action. In Queensland, costs are awarded in civil proceedings in accordance with the Uniform Civil Procedure Rules 1999. The court can order costs at any point in a proceeding, but it is common for costs to be ordered after litigation is concluded.
The court can order costs as:
- a fixed amount;
- a specified percentage;
- an amount to be assessed;
- from or to a specific point in the proceedings;
- an amount to be decided according to the court’s direction.
Standard Costs And Indemnity Costs
Costs can be assessed on a standard costs basis, taking into account only necessary and proper costs that were incurred to obtain justice or to enforce or defend the rights of the party. Typically, this means that only some of the party’s incurred debt is covered by costs. A court may decide to award standard costs if they feel that the party is entitled to costs but improperly conducted their case or wasted the court’s time. Indemnity costs, on the other hand, are calculated with regard to all reasonable and warranted costs, according to a court-mandated scale of fees, any costs agreements and ordinarily payable charges for solicitors. Indemnity costs usually cover most of the incurred fees and charges.
Typically, costs “follow the event” so that the unsuccessful party pays the costs of the other party. This would mean that in a contested estate case, the estate had to pay the costs of a successful claimant, and an unsuccessful claimant would have to repay the estate the costs involved in defending the estate. However, Family Provision Claims do not always follow this pattern. There are considerations in contested will cases that are not commonly found in other types of litigation. As the court emphasised in Singer v Berghouse (1993), family provision cases stand apart and “generally depend on the overall justice of the case”.
The court has wide latitude when assessing costs for a Family Provision Claim, which can make it harder for solicitors to advise their clients on the likely outcome.
The question of “overall justice” may be informed by the reasonableness of the claim, the financial impact that costs would have on either party and the conduct of the parties. The court may take into account whether a party has failed to follow the rules of the court, whether one of the parties wasted the court’s time with irrelevant material, the overall size of the estate, any offers of settlement and any further matters that the court considers relevant.
The court will not penalise an unsuccessful claimant with costs awarded against them if the testator or the executor caused the litigation through their own conduct. For instance, the court will reconsider costs if a testator omitted mention in their will of someone who was entitled to provision, or an executor refused a reasonable settlement offer from a claimant. The other circumstance that would encourage the court to not award costs against an unsuccessful claimant is when there were grounds for investigation before making an assessment either way.
The suggestion that the court takes the claimant’s conduct into consideration when awarding costs is borne out in Yeomans v Yeomans . In this case, the claimant was a de facto partner of the deceased and was awarded $50,000 from the deceased estate, but was only awarded costs on a standard basis not on an indemnity basis. This was because the applicant had acted with unreasonable conduct in not disclosing a previous payment they had received from the estate, and making an unreasonable settlement offer during negotiations with the executor.
In Manly v The Public Trustee of Queensland, both sides sought orders for costs against the other party. The applicant was unsuccessful in her claim but it does not necessarily follow that she would not receive costs or that costs would be awarded against her. The court found the applicant’s argument for costs was “entirely without merit”, and she should not be reimbursed for her costs from either the estate or the other party. The court considered awarding costs against the claimant because she “set out to mislead the court” and also refused a reasonable offer from the estate that was not beaten at trial.
The court ultimately ordered that the claimant should not pay the other party’s costs, because she pursued the claim in the first place out of financial need, and would suffer if costs were awarded against her. The fact that she rejected an offer from the estate should not weigh heavily on the court’s decision because the offer was made after considerable costs had already been incurred. The court decided that the estate should reimburse the beneficiaries for the expense involved in defending their inheritance, as they had acted appropriately during the proceeding.
When the claimant in Manly v The Public Trustee of Queensland appealed the decision, the court found against the applicant, and this time awarded costs to the estate. The court here defined an important distinction between costs on first instance and on appeal:
“A litigant has a right under the rules of court to test a judgment by bringing an appeal, but he has no similar right to do so at the expense of the other party or estate”.
If you plan on contesting a will in Queensland, it is important that you first try to reduce costs through negotiating a compromise with the executor of the estate. If you do not make a reasonable attempt to reach a resolution, the court may award costs against you. Our contested wills team can help you negotiate a solution before it becomes a court matter, and also help you make a Family Provision Claim that will have the best chance of success in both award and costs. Please contact or call 1300 038 223 to discuss your case with our experienced solicitors.