Naturally, one of the most frequently asked questions is about the cost of contesting a will (family provision claims). It goes without saying that it often is the first thing that comes to mind. This article will provide a legitimate response to the question, “How much does it cost to contest a will?” We shall discuss estates, negotiation, disputed trials, and of course, how you can successfully contest or dispute a Will in Australia.
The reasons for disputing a will are numerous.
A will can be contested for a variety of reasons, including:
- The deceased did not have the mental capacity to form a will when they signed it, and the will was made with the help of others.
- A person who had a responsibility to care for the deceased was not given a fair part of their possessions.
Other factors may be examined, but the three listed above are the most compelling. Only the deceased’s spouse, children, grandchildren, siblings, or de facto partner have the right to oppose the will.
You will not be able to contest a will if you are not regarded an eligible person. This is a very important thing you have to understand because often, people who may wish to contest a will are not legally entitled. We will discuss that later in this article. But let’s answer your question first.
The Cost of Contesting a Will
It is quite common in most court proceedings for the losing party to be required to pay the winning side’s legal costs. However, it is rather common for a family provision application (contesting a will) to be resolved with the estate paying the applicant’s legal fees (the person contesting the will). This is in addition to the estate’s legal expenditures (defending against the applicant’s claim). In other words, the legal costs are taken from the estate.
Will the estate cover my legal fees?
This is by no means a universal rule. In truth, courts have denied applications where they are not convinced that the applicant’s claim is reasonable and suitable. They’ve also ordered the applicant to pay the estate’s legal fees for contesting the claim. As a result, no one should ever presume that the inheritance will cover all of their expenses. This is fundamentally why you must consult with an experienced estate litigation lawyer. If you don’t, you run the risk of seeking advice and representation by a lawyer who lacks experience and expertise which may mean they take on your matter, but because of their inexperience, expose you to big financial risk.
Why is it better to negotiate instead of litigate?
Claims that lack merit or have a small estate are discouraged by the courts, and such claims are encouraged to be handled outside of court. As a result, the majority of estate conflicts are resolved through negotiation or mediation. This prevents legal fees from eroding the estate. These can emerge when a dispute needs to be resolved through the legal system. When calculating the overall cost of contesting a will, you must always consider this factor. At Law By Dan, our experienced estate dispute lawyers can help you explore all avenues to resolve things quickly.
One of the advantages of these agreements through negotiation or mediation is that the parties have control over the outcome. As a result, they keep the costs of fighting a will to a minimum. For example, those that would be incurred if a family provision claim was brought before the court. It is common for a settlement agreement to include provisions for the reimbursement of each party’s legal costs if the case is settled this way.
How much is it actually going to cost?
Trying to figure out how much it will cost to dispute a will is a difficult task.
If the dispute is resolved without going to court, the typical cost of contesting a will is $7,000 to $15,000.
If the case goes to court, contesting a will can cost anywhere from $25,000 to $120,000.
Although the fees of opposing a will may have to be paid upfront, the estate may reimburse you if your lawsuit is successful.
After evaluating the merits of your case, certain law firms may offer a no-win, no-fee policy. At Law By Dan, we have leading estate litigation lawyers who offer this to clients.
The expenses of contesting a will vary depending on the following factors:
- What kind of claim are you making?
- The nature and scope of any issues that may have arisen as a result of your claim
- What is the executor’s willingness to negotiate a settlement?
Hourly or Fixed Rate Solicitor’s Fees
When choosing a solicitor to represent you in a will contest, it’s a good idea to look at a few different options.
Most lawyers charge between $300 and $500 per hour and will provide you with an estimate for their services.
When choosing a lawyer, bear the following in mind:
- What kind of estate litigation experience do they have?
- What is their track record in cases involving will contests?
- Is the lawyer’s fee based on an hourly or set rate, and what will the total cost be?
The cost difference between will dispute lawyers in Sydney can be in the tens of thousands of dollars, so it’s critical to do your homework to ensure you get a reputable, competitive legal firm.
How much does a litigated trial and hearing cost?
It is not uncommon for legal fees for the applicant alone to surpass $75,000 if a family provision claim continues to a litigated trial and hearing. This does not cover the executors’ costs of contesting the application, which is likely to be similar.
When it comes to contesting a will, legal fees can be a considerable burden on the estate. As a result, it is the parties’ responsibility to resolve disputes quickly and efficiently. They should only concentrate on the most important issues.
What exactly is a “No Win, No Fee” agreement?
Payment of your legal costs is postponed until the successful resolution of your Family Provision Claim under a ‘No Win, No Fee’ arrangement.
In the event that you are successful, your legal fees are usually reimbursed from the Estate’s funds rather than from your own wallet.
We will have to incur expenses on your behalf in order to complete your case. A filing fee, for example, is required to file a claim in court. We will make every effort to postpone these fees for you. For example, we frequently ask the court to postpone your filing fee. Despite our best efforts, we are not always able to postpone all third-party payments. You might need to make a few minor investments along the road. We make it a habit to notify you of any unavoidable expenses before they occur.
If your claim is unsuccessful, you will not be charged any legal expenses under a ‘No Win, No Fee’ agreement. Taking legal action, on the other hand, is not without danger. If your case is one of the few that need a Court hearing, you should be aware that if you lose, the Court has the authority to order you to pay the other party’s expenses at its discretion. No one has ever had to pay a costs order in our firm’s history. We have avoided such costs orders against our clients because we thoroughly investigate the merits of their claim before considering legal action, and we closely monitor your case once it has begun to provide advice on its chances of success.
At Law By Dan, our estate litigation lawyers will present you with a “Client Services Agreement” after their initial free appraisal of your matter. This is a written document that outlines the work they’ll undertake for you and explains how the legal fees are determined in detail.
Limitations on how long you have to contest a will
Contesting a will has stringent time constraints, so you must act swiftly if you wish to do so. Although time constraints vary by state, you must normally dispute a will within 12 months after the will-death. maker’s
If you missed the deadline for a valid cause, you shoukld seek advice from one of our estate litigation lawyers immediately.
What if you don’t live in the same state as the deceased?
The legislation of the state where the deceased resided will be applied to the will. Make sure your lawyer is aware of this so that they can supply you with accurate information about the state.
If you believe you are entitled to more than you were given, contesting a will is time well spent. Although the process might be emotionally draining, it is crucial to remember that contesting a will can have significant long-term benefits.
What is the procedure for challenging a Will?
It’s best to engage an estate litigation specialist who is an expert in estate disputes if you want to make a claim against the deceased estate or if you want to make a family provision claim.
The following are some of the general stages involved in contesting a will:
Step 1: First and foremost, you must determine whether or not you are eligible to file a claim.
Step 2: The claimant tells the executor of the Will of their intention to file a claim (typically through their lawyer). It is recommended that the executor wait until the claim is resolved before distributing the estate.
Step 3: Before going to court, both parties can enter into negotiations to address the issue. A formal agreement is drawn up to protect all parties if a settlement can be achieved.
Step 4: If the situation cannot be settled, court proceedings will be initiated. In court, a summons and an affidavit must be filed, including any proof supporting the allegation. The executor is then served with it.
Step 5: The executor and beneficiaries are given the chance to contest the claim.
Step 6: After that, all parties involved in a Will dispute will attend a mediation session to try to settle the estate issue.
Step 7: If the estate claim cannot be addressed through mediation, a trial will be scheduled, and all parties will be required to submit their opposing arguments to the court at a final hearing. They will have to show a judge that they have a financial need, which will be assessed in relation to the size of the estate.
Step 8: The judge hears all of the evidence and then decides whether or not to make a provision – or several provisions – in the estate. as well as the amount The judge is also in charge of determining how the court fees will be paid.
What is the average time it takes to resolve a Will Dispute?
The length of time it takes to dispute a will is determined on the complexity of the case and the parties’ desire to participate.
A settlement outside of court takes around six months, and a court hearing takes roughly two years. If both parties are prepared to bargain early in order to settle the case outside of court, the procedure can be accelerated.
What to Do Next
As mentioned throughout this article, the best thing you can do when considering contesting a will is to seek legal advice as early as possible. At Law By Dan, our estate litigation lawyers are deemed by relevant law societies across Australia as being in the top 5% of estate litigation practitioners in their state.