Contesting a Will: Who Pays the Legal Costs?

How much will it cost to contest a Will?

Determining how much a case will cost when contesting a Will is very difficult, and varies hugely depending on each individual case. Factors such as the type of claim you are making, how willing the executors are to negotiate and whether there are other complicating factors will all affect the estimated cost of your case.

In accordance with Victorian legislation, Hentys Lawyers will provide you with a detailed cost agreement, which specifies the costs you are likely to incur.

How estate litigation differs from other types of litigation

In most types of litigation, parties may incur significant legal costs for the duration of the case. The Probate Costs Rule was established however, as estate dispute litigation differs from most other types of litigation due to a number of factors:

  • In many estate dispute cases, litigation may arise as a result of the actions of the testator or the residuary beneficiaries (those who receive assets by a will or trust that is not specifically left to another designated beneficiary).
  • Courts do not want to discourage executors and trustees from carrying out their duties. As a result, executors and trustees are usually entitled to be indemnified for all costs that they have reasonably incurred, including the cost of legal proceedings.
  • There are often good reasons to question matters with regard to the will, such as the capacity of the testator or the execution of the will. In these cases, the court may feel the litigation was justified and thus costs will not be ordered against the unsuccessful parties.

The Civil Procedure Act, 2010

It is however important to be aware of the broad powers of the Court in relation to costs under the Civil Procedure Act 2010. The purpose of the Civil Procedure Act is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

This means that the Court, at its discretion, can make decisions in civil proceedings, particularly if it determines that one party is acting contrary to the principal purpose of the case. This may include causing an unnecessary delay in proceedings or failing to use reasonable endeavours to resolve the dispute. In these instances, the Court may order the responsible party to pay legal costs.

It’s important to be aware that parties should not enter any type of litigation feeling safe in the knowledge that their costs will be paid out of the estate. This was recently set out in the case of Fielder v Burgess 13 where the judge stated:
“In my view… it is not obvious to me why a testator’s fault in the making of a will should result in a loss to the successful beneficiary in litigation over the estate.”

Commencing court proceedings is not without risk. In some cases, the court is capable at it’s discretion of directing you to pay the other party’s costs.

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