Does the Estate pay the legal costs if the Will is challenged?
One of the most common questions asked by people considering challenging or defending a challenge to a Will is whether their legal costs will be paid by the Estate.
There is no clear cut answer to the question. Whether the Estate pays the legal costs of a person challenging or defending a challenge to a Will depends on the circumstances of each case.
The general rule in court proceedings is that the unsuccessful party in the proceedings pays their legal costs as well as the legal costs of the successful party.
However, this general rule has been modified by the court in proceedings involving a challenge to a Will. There are numerous Supreme Court decisions over the years discussing the principles that will be applied by the Court in determining whether legal costs caused by a challenge to a Will should be paid by the Estate.
It is apparent from these decisions that legal costs will generally be paid from the Estate in the following circumstances:
(a) If the circumstances reasonably called for an investigation to be made before the Court could properly pronounce in favour of the will. This includes situations where the conduct and habits of the deceased have given ground for questioning the deceased’s testamentary capacity such as a diagnosis of dementia.
(b) If the deceased or a person interested in the residue of the Estate, has by their conduct, caused the litigation to occur, the costs of a party unsuccessfully contesting the will may be ordered out of the estate.
The one exception to the above is where the Will is unsuccessfully challenged on the basis of fraud or undue influence and there were no reasonable grounds for the challenge. In these circumstances the Court rarely orders that the unsuccessful parties legal costs be paid by the Estate.
If you are thinking of challenging or defending a challenge to a Will there are strong monetary reasons to seek expert legal advice from a Wills and Estate lawyer. Seeking this advice before challenging or defending a challenge to a Will means that you will be in a position to know whether your legal costs are likely to be paid by the Estate. This can be a deciding factor when legal costs in Will challenges can often be quite high.
You need to be aware that there are time limits to challenging a Will which is why it is important to seek advice early on challenging a Will and whether your legal costs will be paid by the Estate.
Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice in a Will dispute or Estate matter, call The Northern Beaches Lawyer today for an appointment close to home on 9221 0341 – City Experience By the Beach.