Who pays when contesting a Will?

Making the decision to contest the contents of a Will comes with an emotional cost, and a financial one.

In Queensland, the courts can make cost orders determining who pays for the legal costs of contesting a Will, but that’s not always straightforward.

Cost orders don’t automatically mean the losing party gets the bill.

There are several key factors that can influence the cost of contesting a Will, including:

  • Type of legal representation: One of the major contributors to the cost will be your legal representation. Hiring an expert in Wills and Estates can save you money in the long run.
  • Complexity: Cases that are straightforward are naturally going to cost less than drawn-out cases. If the dispute can be settled in mediation rather than going to court, your costs will be much lower.
  • Estate size and validity of the claim: The size of the estate and the validity of your claim can also play a role. The court’s cost orders might be proportionate to the size of the estate. And if your claim is found to be invalid, you may end up having to pay legal costs for the defendant. 

The court can order costs at any point, but for the most part, costs are awarded, or decided, at the end of the legal proceedings. Costs can be ordered as:

  • A fixed amount
  • A specified percentage
  • An amount to be assessed
  • From or to a specific point in the legal proceedings

When it comes to contested estates, an unsuccessful claimant might have to repay the estate for the costs involved. However, there are considerations in contested will cases that are not commonly found in other types of litigation. 

The court has a fair bit of sway when assessing costs for a Family Provision Claim, which can make it harder for solicitors to advise their clients on the likely outcome.

The court may consider whether someone has failed to follow the rules of the court, whether one of the parties wasted the court’s time with irrelevant material, the overall size of the estate, any offers of settlement and any further matters that the court considers relevant.

The court will generally not penalise an unsuccessful claimant with costs awarded against them if the executor of the Will was the cause for the litigation.

Wills and Estates can be a complex, and emotional, area of law. It’s in your best interest to ensure you have an expert on your side.

Here at Bickell & Mackenzie, we have solicitors who are specialists in this area. Phone our office on: (07) 3206 8700 or email: info@bimalaw.com.au to make an appointment.

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