Imagine contesting a will and getting tangled up in high legal costs—it’s a tough reality many face.
It’s not just about who gets what in a will; it’s also about the costs, who pays them, and when. We’re not talking pocket change here.
We’re here to guide you through, give you some insights, and potentially save you from a financial whirlwind. Let’s get started, because in this game of wills, knowledge truly is power.
Legal Framework for Contesting a Will in Queensland
Understanding the court’s role is vital in this process. In Queensland, under The Succession Act of 1981, the court is given a fair bit of sway in deciding who bears the financial burden.
The court can make cost orders determining who pays the legal costs of contesting a will. This isn’t always straightforward, though.
Unlike other cases, in family provision cases, cost orders don’t automatically mean the losing party foots the bill. So, knowing this, you’ll have a clearer picture of what you might be getting yourself into financially.
Costs Involved in Contesting a Will
To further illustrate the financial aspects of challenging a will, here are several key factors that can influence the cost of contesting a will in Queensland:
- Type of Legal Representation: One of the major contributors to the cost will be your legal representation. You might hire a competent will lawyer or you might hire a lawyer that doesn’t know what they’re doing, taking extra long and costing you more in legal fees. The choice you make will significantly impact your costs.
- Length and Complexity of the Case: Cases that are straightforward and resolved quickly are naturally going to cost less than drawn-out, complex cases. If the estate dispute can be settled in mediation rather than going to court, you’re likely to incur lower costs.
- Estate Size and Claim Validity: The size of the estate and the validity of your claim can also play a role. For example, the court’s cost orders might be proportionate to the size of the estate. Plus, if your claim is deemed “frivolous, vexatious, or made with no reasonable prospects of success,” you might end up having to cover the legal costs of the defendant.
- Party Conduct: The behaviour of the parties involved can also sway costs. If a party is found guilty of “improper conduct” during court proceedings or if a party shows reluctance in trying to resolve the dispute, additional costs may be ordered against them.
Each of these factors paints part of the picture of what you might expect to pay when contesting a will. But remember, each case is unique, and so are the costs that come with it.
Knowing what could affect those costs can help you make a more informed decision when deciding to challenge a will.
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Who Pays Legal Costs When Contesting a Will?
The court plays a crucial role in determining who shoulders the financial burden when a will is contested. As per Section 99 of the Succession Act 2006, the court has the discretion to make cost orders.
It’s important to understand that these orders don’t necessarily mean the unsuccessful party pays the legal costs.
The court may also regulate the amount an estate can pay in legal fees, ensuring that the costs of contesting a will are fair and justifiable. This power of the court makes contesting a will a nuanced process, reliant on the particularities of each case.
Implications of Successful and Unsuccessful Will Contestation
The specifics of contesting a will and its associated costs can vary depending on the location within Australia. Here are some key differences to note:
In Queensland, a claim against a deceased estate is typically submitted under The Succession Act of 1981 (QLD). The person who initiates the claim is generally responsible for their legal costs. However, should the claim be successful, the court often orders the estate to cover the claimant’s legal fees, wholly or partially.
Similarly, in New South Wales (NSW), a family provision application is made under The Succession Act 2006 (NSW). The court can cap the costs paid by small estates where the net distributable value of the estate is less than $500,000. The court also has the power to regulate the maximum costs that can be paid by the deceased’s estate.
Learn more: Reasons to Make a Will Despite Potential Contests
Strategies to Minimise the Cost of Contesting a Will
Every case of contesting a will is unique, with the costs varying from case to case. A series of key factors can significantly impact the overall cost:
Legal Advice
Before starting, it’s necessary to understand the legal landscape and the possibility of success. Initial advice may cost anywhere from a few hundred dollars to a couple of thousand. It is worthwhile investing this amount to potentially avoid large costs down the line.
Case Complexity
Simple cases can be resolved within six months to a year at a relatively low cost. Complex cases can last several years, potentially causing costs to surge into tens of thousands of dollars.
Dispute Length
The longer the dispute, the higher the costs. Prolonged legal proceedings could inflate the cost due to more billable hours for the lawyer and court costs.
Mediation Costs
A majority of will disputes are settled out of court, reducing costs. However, hiring a mediator also incurs expenses.
Court Costs
If the dispute does proceed to court, expect significant expenses for court fees, legal representation, and possibly expert witnesses.
Success Fees
Some lawyers charge a success fee if the case is won. This can either be a flat fee or a percentage of the inheritance.
Adverse Costs Orders
If the claim is unsuccessful, the court may order the claimant to pay the legal costs of the other party.
It’s crucial to understand these costs and to have a candid discussion with the lawyer about potential expenses before embarking on the legal journey of contesting a will. The possibility of financial strain should be weighed against the potential benefits of a successful claim.
Learn more: Can a Will Be Contested After Probate?
Helping A Client Understand the Cost Implications of Contesting a Will
In our office at Walker Pender, we had a client who was dealing with a challenging situation. After her father’s passing, she found that the will did not reflect the time, effort, and emotional commitment she had invested in his care during his illness. Unsure of the financial risks, she sought our advice on the cost of contesting the will in Queensland.
We explained to her that costs could vary and that the court could decide to apportion the costs amongst the parties involved or even charge them to the estate.
Our team reassured her that her claim, given her significant role in her father’s care, was substantial, and it was less likely that she would bear all the costs, even if she didn’t win.
Our expert advice and support gave the client the confidence to pursue her claim, ensuring she understood the financial implications without losing sight of her rights.
What Is The Cost Of Contesting A Will In Queensland?
Discover the true cost of contesting a will in Queensland with Walker Pender. Our experienced legal team is ready to guide you through every step, ensuring clarity, transparency, and, above all, fairness. Don’t navigate this journey alone. Choose Walker Pender, where justice meets understanding.
