Contesting a Will in Australia involves navigating complex emotional terrain while understanding the significant financial implications. One of the most critical considerations for anyone thinking about challenging a Will is the question of legal costs.
Despite popular opinion, it is dangerous to assume your costs will always be paid by the Estate. Responsibility for costs is always on a case-by-case basis. Below we provide some hypothetical scenarios to show how costs may be allocated.
At Maddens Lawyers, we understand that cost concerns can be overwhelming, which is why we provide clear, upfront advice about your potential exposure to legal fees.
Understanding the Australian Court's discretion on costs
In Australia, the court has wide powers about costs, and in most matters, the unsuccessful party is ordered to pay part of the legal costs of the successful party. However, Will disputes often involve unique considerations that can influence how costs are allocated.
The fundamental principle is that responsibility for costs is determined on a case-by-case basis. Section 99 of the Succession Act 2006 provides that the court may order that the costs of proceedings for a family provision order be paid out of the estate or notional estate, or both, in such manner as the court thinks fit. This gives judges considerable flexibility in determining who bears the financial burden of litigation.
Don't navigate these complexities alone. Contact Maddens Lawyers on 1800 815 228 for expert guidance on your Will dispute.
Scenario 1: If you win the Will dispute
If your challenge to a Will is successful, the typical outcome is favourable for your financial position. When you prove grounds such as:
- Inadequate family provision
- Undue influence over the testator
- Lack of testamentary capacity
- Fraud or forgery
The court will generally order that your reasonable legal costs be paid from the deceased's estate. This approach recognises that you were unfairly treated in the Will and should not bear the financial burden of correcting that injustice. The rationale is straightforward: if the court finds you deserved provision from the estate, it would be unfair to diminish your inheritance by requiring you to pay your own legal fees.
The Maddens Lawyers' Will Challenges team works on a no win no fee basis for clients with grounds for a successful claim, meaning you won't pay our professional fees unless your claim succeeds.
Scenario 2: The risks of losing a Will challenge
One of the biggest risks of any court proceeding is that you might need to pay the other side's costs if you lose. If you do not win, you might lose any damages or money you originally sought and receive a costs order to pay the other side's costs.
- Paying your own legal fees
- Potentially paying the estate's legal costs, especially if the claim was without merit, frivolous or made in bad faith
- Facing enforcement action if costs orders aren't paid
If you fail to pay the costs, then the order may be enforced, which could result in, for example, a warrant for seizure and sale of property, or an application for bankruptcy or winding-up. This makes obtaining proper legal advice before proceeding absolutely essential.
Protect yourself from costly mistakes. Schedule a consultation with our experienced team today.
Scenario 3: Complex cases and partial success
Not all Will disputes result in clear wins or losses. Australian courts recognise that some challenges arise from genuine confusion or concern rather than frivolous claims. Even when a challenge isn't entirely successful, the court may still order the estate to cover some or all legal costs when:
- The Will was ambiguously worded or poorly drafted
- Legitimate questions existed about the testator's mental capacity
- Evidence suggested possible undue influence
- Suspicious circumstances surrounded the Will's creation
- The challenge helped clarify important legal issues
The unsuccessful party will generally be ordered to pay the costs of the successful party. This means if you are unsuccessful in court proceedings, you may be required to pay a portion of the successful party's legal fees. However, courts can depart from this principle when justice requires it.
State-by-state variations in Will dispute costs
Each Australian state and territory has its own succession laws that influence how costs are handled:
Victoria
Operating under the Administration and Probate Act 1958, Victorian courts have established precedents for cost allocation in Will disputes. Our team has over 70 years of experience navigating Victorian succession law.
New South Wales
The Succession Act 2006 governs NSW Will disputes, with Sydney courts developing their own approach to cost orders.
Queensland
Under the Succession Act 1981, Queensland courts follow similar principles but with state-specific procedures.
While the fundamental principles remain consistent across Australia, the specific processes and considerations can vary. Don't risk misunderstanding your state's laws. Call 1800 815 228 for state-specific advice.
Factors Courts consider when awarding costs
Australian courts examine multiple factors when deciding cost allocation:
- Merit of the claim: Strong evidence supporting your position increases the likelihood of favourable cost orders
- Conduct during proceedings: Reasonable behaviour and genuine attempts at settlement are viewed favourably
- Whether the deceased caused the dispute: Poorly drafted Wills or suspicious circumstances may justify estate-funded litigation
- Public interest considerations: The Court might not order costs even if a party loses, because for example the case was about a matter of public interest, or important legal principle
The importance of early legal assessment
Costs may be awarded on an indemnity basis where the court finds that the court proceeding had no legal basis. If the court awards costs to the successful party on an indemnity basis, the unsuccessful party may need to pay up to 90-95% of the fees and costs actually incurred by the successful party.
This highlights why obtaining expert legal advice before commencing proceedings is crucial. At Maddens Lawyers, our Will Challenges team provides honest assessments about:
- The strength of your potential claim
- Likely cost outcomes
- Whether no win no fee arrangements apply
- Strategic approaches to minimise cost risks
Cost agreement transparency
Where legal work involves or may involve litigation, the retainer between the solicitor and client must provide an estimate on how much the client may recover from the other side if successful. Conversely, the retainer must include an estimate of costs the client may have to pay to the other party if unsuccessful.
Maddens Lawyers prioritises transparency in all cost arrangements. We provide clear, written estimates and keep you informed throughout your matter. Our plain English approach ensures you understand your financial position at every stage.
Take the first step with confidence. Complete our quick online claim check or call 1800 815 228.
Why choose Maddens Lawyers for your Will dispute
With over 75 years serving Victorian communities, Maddens Lawyers brings unmatched experience to Will disputes. Our approach combines:
- No win no fee options for qualifying claims
- Accredited specialists in relevant legal areas
- A track record of recovering over $150 million for clients
- Compassionate support during difficult times
- Clear communication without legal jargon
Our Wills and Estates team are experienced professionals who understand both the legal and emotional complexities of Will disputes.
Making an informed decision
Before contesting a Will, consider:
- Obtain expert advice: Our initial consultations help assess your claim's merit
- Understand time limits: Strict deadlines apply to Will challenges
- Consider alternatives: Mediation might achieve resolution without court proceedings
- Assess financial risks: We provide realistic cost estimates upfront
- Document everything: Strong evidence improves both success chances and cost outcomes
Take action today
Don't let uncertainty about legal costs prevent you from pursuing a legitimate claim. If you've been unfairly left out of a Will or inadequately provided for, you may have grounds for a successful challenge with costs paid by the estate.
Contact Maddens Lawyers today on 1800 815 228 for clear, comprehensive advice about:
- Your eligibility to contest a Will
- Potential cost outcomes for your specific situation
- No win no fee arrangements
- Strategic approaches to minimise financial risk
Visit our Will Challenges page to learn more, or complete our online enquiry form for a confidential assessment of your case.
Remember, in Will disputes, timing is critical. The sooner you seek advice, the better positioned you'll be to understand your rights and make informed decisions about proceeding.
At Maddens Lawyers, if we determine you have grounds for a successful claim we will advance your claim on a no win no fee basis. With our experience and no win no fee options for suitable cases, you can pursue justice without unnecessary financial stress.
Don't wait. Call 1800 815 228 now or make an appointment online to discuss your Will dispute with our expert team.
