Cost of Contesting a Will in NSW
The cost of contesting a will depends on several factors, including your legal representative’s fee schedule and fee structure, the size and complexity of the estate, and the timing of the resolution.
The fees that a person may pay will depend on their legal representative’s fee schedule and fee structure which are set out in their costs agreement. 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.
The fees that a person may pay will also depend on the size and complexity of the estate. It is often the case that a large or more complex estate may require more detailed and extensive legal advice and assistance which may increase the legal costs.
The fees that a person may pay will also depend on the timing of the resolution. Those matters that are unable to be resolved through negotiations and proceed to a court hearing will have higher fees. The legal costs for an average-sized estate that proceeds to hearing can exceed $100,000 or more.
In some cases, for instance if you are successful, the court may order that the deceased’s estate and/or a losing party reimburse you for some of your legal costs. However, there is no guarantee that your costs will be paid from the deceased’s estate or by another party.
In other cases, the court may order that you pay the executor or other parties’ costs.
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*.
*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.
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.
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.
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.
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’).
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.
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.
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.
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.
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.
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.
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.
However, the cost to run a matter to completion including a court hearing, can exceed $100,000 or more.
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.
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.
How Long Do I Have To Pay the Fees if I Am Unsuccessful?
A costs order typical requires payment within 28 days.
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.
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.