Empower Wills and Estate Lawyers Offer No Win No Fee Arrangement

In some cases we can offer clients a Conditional Costs Agreement, otherwise referred to as a “no win no fee” agreement. A “no win no fee” agreement means that a client will not have to pay any of our fees unless and until a successful outcome is achieved*. Engaging experienced will dispute lawyers or a dedicated will contest lawyer can help you understand how these arrangements work when contesting a will or navigating challenging a will proceedings.

*Whilst a client subject to a “no win no fee” agreement will not have to pay our fees until and unless they achieve a successful outcome, the client is still liable to pay disbursements and barrister’s fees throughout the course of the matter. Whether we can offer a “no win no fee” agreement will depend on the facts and circumstances of each case and may vary depending on issues commonly arising in contesting wills or disputing a will.

What Happens if My Claim Is Successful?

If you successfully contest a will the court will make a ‘family provision order’ specifying what benefit each beneficiary will receive from the deceased’s estate. A successful claim will generally result in you receiving a larger benefit compared to what you would have received under the terms of the will, depending on the grounds for contesting a will and the overall strength of your circumstances.

If you are successful, or if there are facts and circumstances which otherwise give rise to a claim for costs, you may apply to the court for a costs order. A costs order may require the deceased’s estate and one (or more) of the unsuccessful parties to reimburse you for some of your legal costs, particularly in more complex will disputes or cases involving challenging a will where negotiations have been lengthy.

What Happens if the Claim is Unsuccessful?

If you contest a will and are unsuccessful, or the facts and circumstances of the case warrant a costs order against you, the court may order that you pay the executor’s and one or more of the other parties’ costs. This can occur in matters involving disputing a will or broader will disputes, especially where the evidence does not support the claim.

In some cases, the facts and circumstances of the case are such that even where you are unsuccessful, the court may order that the deceased’s estate pays your costs (in other words the costs ‘come out of the estate’). These outcomes can vary widely across disputed wills and cases involving challenging a will.

However, in other cases, the court may order you personally liable to pay one or more of the other parties’ costs which can be significant and can often exceed $100,000. In some cases, costs orders can be ruinous and the risk of a costs order should always be front of mind, especially when deciding how to contest a will or whether to challenge a will in court.

What Are the Costs if the Will Contest Is Settled at Mediation?

The costs for a matter that is settled at mediation, instead of proceeding to hearing, will typically be lower. The costs will also depend on factors including the complexity of the facts and circumstances, the complexity of the estate, the nature and size of the estate, the number of parties, and the period of negotiations and mediation, all of which commonly arise when contesting a will or dealing with broader will disputes.

Typically, a party’s costs for a matter that is settled at mediation will be in the range of $30,000 to $50,000, but may be more. In some matters, those seeking to contest the will, proceed with contesting wills, or resolve issues relating to disputed wills will often find mediation to be the most cost-effective process.

Is It Cheaper to Negotiate Instead of Litigating?

It is cheaper to negotiate instead of litigate in almost all circumstances. The reason for the difference is because the process of negotiation involves the provision of legal advice, client conferences, and the preparation of correspondence, whereas litigation involves the preparation of evidence (typically in affidavit form) and the preparation and attendance at court, often for several days or longer.

This cost difference is especially relevant when contesting a will or deciding whether to challenge a will, since litigation may require significant evidence needed to contest a will and additional work that arises in will disputes.

How Much Does It Cost To Go to Court?

The fees that a person pays will depend on their legal representative’s fee schedule and fee structure which is set out in their costs agreement. These considerations apply whether you are preparing to contest a will or seeking advice on how to contest a will in NSW.

The legal representatives may charge the client for work on an ongoing basis or may offer a ‘no win no fee’ arrangement where the client is not required to pay the costs of the lawyer (but will often still be required to pay the cost of a barrister and disbursements) unless and until a successful outcome is achieved. In some cases involving challenging a will or broader will disputes, a will contest lawyer or specialist will dispute lawyers may be required to assist with court preparation.

The cost to commence proceedings will depend on the work that is required up to that stage. The cost to commence a claim is typically between $25,000 – $40,000. These initial expenses can be higher where the evidence needed to contest a will or complex disputed wills require additional preparation.

However, the cost to run a matter to completion including a court hearing, can exceed $100,000 or more. This is common in cases involving extensive contesting wills or multiple parties seeking to contest the will through litigation.

Does the Estate Have To Pay the Legal Costs When the Will Is Challenged?

The estate does not have to pay the legal costs of a party who contests a will. The person contesting the will is required to fund their own legal fees, which will depend on his or her solicitor (and barrister’s) fee schedule and fee structure. These funding obligations apply regardless of whether you are challenging a will, involved in disputed wills, or seeking guidance from lawyers for wills.

However, if the person contesting the will is ultimately successful, the court may order that the deceased’s estate and one or more of the other parties reimburse the successful party for some of their costs. This can occur in complex will disputes, particularly where the court finds that the circumstances justified the need to contest the will or pursue formal proceedings with the assistance of experienced will dispute lawyers.

How Long Do I Have To Pay the Fees if I Am Unsuccessful?

A costs order typically requires payment within 28 days. This deadline applies whether you were contesting a will, challenging a will, or involved in broader will disputes that required the court to determine the outcome.

However, in some instances a party who disputes the costs order may apply to have the costs order assessed by a ‘costs assessor’ with the objective of having the costs order reduced. This may occur in matters involving disputed wills or situations where a person sought advice about how to contest a will or the steps involved in contesting wills more generally.

If have questions or concerns about the potential costs of contesting a will in NSW, contact us or 1300 414 844 for a confidential and obligation-free initial consultation. This applies whether you intend to contest a will, are considering whether to contest the will, or wish to understand the risks of disputing a will in court.

Want to learn more?

Read more about what’s involved in contesting a will in NSW here.

Read more who can contest a will in NSW here.

Read more about considering mediation when contesting a will here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.