How Much Does It Cost to Contest a Will in NSW?
Determining the amount it will cost to contest a will in NSW can be a complicated process.
The average cost to contest a will would be $5,000 – $10,000 if the matter stays out of court.
If the matter goes to court, the average cost to contest a will would be $20,000 – $100,000.
Although the costs of contesting a will may need to be covered upfront, if your case is successful, your costs may be reimbursed by the estate.
Some law firms may offer a no win no fee service once they have assessed the merits of your case.
The costs of contesting a will in NSW vary on a case by case basis depending on the following factors:
- The type of claim you are making
- The nature and extent of any complications surrounding your claim
- How open the executor is to negotiating a settlement
The cost to contest a will
In the case of a family provision claim that is finalised through the process of mediation, the average cost will be around $30,000.
However, if you end up in court, this can increase to more than $50,000.
As there are considerable costs associated with contesting a will, it is worthwhile assessing the estate assets and whether a case is likely to be financially favourable.
Family Provision Claims
Many contests to a will in NSW will result in a family provision claim.
A family provision claim is an application for a share or a larger share of the estate of the deceased.
A family provision claim can be made by any ‘eligible’ person who has been left out of the will and did not receive what they feel they were entitled to.
An application for a family provision claim must be made to the court within 12 months of the deceased’s death, and on assessing the claim, the court will consider the following:
- The relationship between the applicant and the deceased
- The financial obligations owed to the applicant by the deceased
- The value of the estate
- The financial situation of the applicant, including their current and future financial needs
- The applicant’s physical and mental health
- Whether the deceased was providing for the applicant financially before their death
- The applicant’s character and lifestyle
- Any other claims on the estate
Solicitor’s Costs: Hourly or Fixed Rate
When deciding on a solicitor to represent you in contesting a will, it is advisable to research several options.
Most solicitors will charge $300 – $500 per hour and will quote you for their work accordingly.
Things to keep in mind when selecting a solicitor include:
- What is their experience in family law?
- What is their track record in cases or contests to a will?
- Does the solicitor charge an hourly or fixed rate, and what will be the overall amount?
The difference in legal costs amongst will dispute lawyers in Sydney can run in the tens of thousands, so it is crucial to do your due diligence to make sure you engage a trustworthy, competitive legal team.
Supreme Court Chief Justice the Hon Wayne Martin
In a speech at Law Week several years ago, then Court Chief Justice, the Hon Wayne Martin criticised the legal profession for continuing to charge clients an hourly rate rather than a fixed fee.
He also discussed various things to be wary of a ‘no win, no fee’ agreements.
Items in a cost arrangement with your lawyer you may want to investigate further include:
- Extra fees for a successful outcome (usually priced at 10% or 25% extra)
- Interest on late payment fees
- Additional charges for paralegals, juniors and secretaries
- Increases in rates halfway through proceedings
- Upfront charges for subpoenas, invoices or your barrister
While ‘no win, no fee’ arrangements may seem tempting upfront, they can often end up being more costly in the long run.
Solicitor/Client Costs vs Party/Party Costs
When making a contest or challenge to a will, you might come across the terms solicitor/client costs and party/party costs.
Solicitor/client costs refer to 100% of the fees owed to your lawyer for your legal representation.
Party/party costs are the costs another party must reimburse you for your legal fees.
Party/party costs usually work out to be about 70% of your overall legal fees.
Who Pays for the Cost of Contesting a Will?
Who pays for the legal costs associated with contesting a will depends on a few factors.
If the matter is settled in the mediation process (i.e. before it reaches court), you will receive an agreed-upon amount from the estate.
From this, you will need to pay 100% of your legal fees, or Solicitor/Client costs.
If your case cannot be settled in mediation and progresses to court, the situation will be slightly different.
If your claim is successful, the court will generally rule that the estate must pay party/party costs or ‘ordered’ costs.
This will usually cover about 70% of your solicitor/client costs. You will then need to pay the rest out of your allotted share of the estate.