To challenge a will means to take issue with execution of the will, the will-maker’s cognitive health (referred to as ‘testamentary capacity’) at the time they made the will, or the circumstances surrounding the preparation of the will (i.e., suspicious circumstances, undue influence, fraud).

In NSW, the cost of challenging a will depends on several factors including the parties’ willingness to negotiate, the timing of the resolution, the complexity of the issues in dispute, and the legal representative’s fee structure.

Factors Affecting Legal Costs

The Parties’ willingness to Negotiate

The factor that has the largest impact on costs is the parties’ willingness to negotiate.

Parties that are willing to negotiate and make concessions early in the process are often able to resolve the dispute with minimal legal costs. In some cases, the parties can even agree for the estate to reimburse them for their legal costs, so they are not out of pocket for their legal costs.

On the other hand, disputes that involve protracted negotiations and litigation will generate higher legal costs.

Each party should bear in mind the risk of future costs when negotiating.

The timing of the resolution 

In most cases a will challenge can be resolved through agreement. The earlier an agreement can be reached, the lower the legal costs.

A dispute resolved early in the process can often be resolved at minimal cost and sometimes at no personal cost if the parties agree for the estate to reimburse all parties.

Whereas a dispute that involves protracted negotiations and results in a court hearing can be very costly.

The Complexity of the Issues

The complexity of the issues will also impact the potential legal costs.

The complexity of the issues will depend on the nature of the claim.

Where a matter is confined to one issue, for example, whether a will has been properly executed, and the facts are not in dispute, less legal work may be required.

On the other hand, disputes that involve allegations of undue influence and suspicious circumstances in the context of a will-maker who lacked testamentary capacity, may require more legal work including the subpoena and examination of medical records, engaging medical experts, and obtaining evidence from lay witnesses. These more complex cases often require legal representation over a longer period of time.

The Legal Fees 

The fees a solicitor charges can vary depending on their experience, expertise, and business model.

Solicitors may charge their fees on an ongoing basis, or at the end of the matter.

Some solicitors may charge fees on a conditional (‘no win, no fee’) basis, where the client is not required to pay the legal costs of their solicitor unless and until a successful outcome is achieved. However, the client will often still be required to pay the costs of a barrister and disbursements.

As with any large purchase, we recommend clients obtain 3 quotes before choosing a solicitor to represent them.

Understanding the Costs

Solicitor’s Fees 

In NSW, each party has the opportunity to engage legal representation of their choice and a party may choose a solicitor based on their expertise, experience, fees, or personality.

The fees a solicitor charges can vary depending on their experience, expertise, and business model. In our experience, solicitor’s fees in NSW range from $300 -$600 per hour.

Solicitors may charge their fees on an ongoing basis, or at the end of the matter.

Barrister’s Fees 

In some cases, a barrister is also required to provide advice, prepare court documents and to appear in court.

In our experience, barrister’s fees in NSW can range from $400 -$1,000 per hour, or more, depending on seniority.

While most barristers will require the client to pay their invoices on an ongoing basis throughout the matter, some barristers accept briefs on the same terms and conditions as the solicitor. For instance, if the solicitor is providing their services under a conditional (‘no win, no fee’) costs agreement, some barristers are willing to accept the brief on the same terms.

Disbursements 

Disbursements refer to the fees for out-of-pocket expenses that are required in connection with a matter.

Examples of disbursements include search fees, court filing fees, and expert witness fees.

Mediation Costs

The cost of mediation will depend on what form the mediation takes.

Court-annexed mediation often involves the court registrar acting as a mediator, with the aim of settling the matter outside of a court hearing. There is no charge for the mediator or the venue in this instance.

Private mediation occurs when the parties jointly choose the mediator and the costs of the mediator and venue are borne by the parties or paid from the estate, either via agreement or court order.

Expert Reports 

Some cases require expert evidence to resolve the facts in dispute.

Examples of expert evidence in will challenges include handwriting experts, medical experts, or expert valuers.

The cost of experts can range from $1,000 to $10,000 or more depending on the expert and the work required.

Filing Fees 

A person challenging a will may choose to commence court proceedings.
Court proceedings can be commenced while negotiations are still on foot, or after negotiations have proved unsuccessful.

A claimant who commences court proceedings will be required to prepare and file the prescribed court forms to commence the court process. The filing of the court documents will incur court filing fees. Court filing fees can often range from $1,000 – $3,000 but this may vary depending on the specific case.

Court filing fees are an example of a disbursement that are often paid by the solicitor as an out-of-pocket expense, and then charged back to the client.

Preparation for Hearing 

Once court proceedings have been commenced, each party will need to prepare their evidence that supports their own case.

This can often involve gather evidence, preparing affidavits for lay witnesses and engaging expert witnesses.

The costs to prepare for a court hearing ranges from $30,000 – $60,000 or more, depending on the work required.

Hearing Fees

The fees for a court hearing can be costly and will depend on the length of the hearing.

Generally, a one-day hearing will be less expensive than a five-day hearing because of the time attendance at court. The costs to prepare for and run a five-day court hearing, can cost $100,000 or more.

Executor’s Costs

Defending a Will Challenge

It is the executor’s role to defend a will against a claim, regardless of whether the claim is well founded or frivolous.

As with other parties, the cost of defending a will depends on the parties’ willingness to negotiate, the timing of the resolution, the complexity of the issues and the solicitor’s fee structure.

While the executor will often be reimbursed from the estate for defending a claim, the facts and circumstances of the case will help guide the potential cost consequences and specific advice should be obtained in all cases as soon as the executor becomes aware of a claim.  

Managing the Costs

Discussing Costs with Your Lawyer

The first step to better understand the fees involved in a will challenge is to contact a will and estate lawyer to discuss your matter.

Once the lawyer understands the facts and circumstances of a client’s case, as well as the client’s objectives, the solicitor can provide an estimate of costs and issue a Costs Agreement. Once the Costs Agreement has been discussed, signed, and returned, the legal process can begin.

Negotiating a Settlement 

It is almost always more cost-effective to negotiate a settlement as opposed to going to court.

The process of negotiating usually involves a lawyer writing to the other side(s) lawyer, setting out their client’s position, making an offer (or counteroffer) and the legal reasoning supporting the position.

Considering Alternative Dispute Resolution 

It is almost always cheaper to mediate an outcome as opposed to having the matter determined by a court. Mediation can occur before court proceedings have commenced or after court proceedings have been commenced.

When matters go to court they require preparation and the attendance at court. These inherently increase the legal fees.

Weigh up the Risks versus Benefits 

Parties that are willing to negotiate and make concessions early in the process are often able to resolve the dispute with minimal legal costs. In some cases, the parties can even agree for the estate to reimburse them for their legal costs, so they are not out of pocket for their legal costs.

On the other hand, disputes that involve protracted negotiations and litigation will generate higher legal costs. A party who brings an unsuccessful claim may also be ordered to pay the successful party’s costs.

Each party should bear in mind the risk of future costs at all stages of a matter.  

Empower Wills and Estate Lawyers offers genuine flexible fee structures tailored to each client’s circumstances, including sliding fee scales, payment plans, and pensioner and concession discounts and ‘no win, no fee’ agreements in some cases.

If you’re interested in understanding the costs to challenge a will, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.

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.