Cost of Contesting a Will in NSW

If something is too good to be true, it probably is. ‘No win no fee’ firms are not as black and white as clients wish them to be – solicitors are legally obligated to charge fees for their work. However, the manner of payment varies between firms, and unfortunately, this is where most clients get caught.

First, let’s debunk the myth of the ‘no win no fee’ fad.

A traditional ‘no win no fee’ contract is known as a Conditional Cost Agreement, where clients are contractually obligated to pay solicitor fees and in the event the client’s case wins or settles, pay their solicitors what is known as an ‘uplift fee’. This additional uplift fee can be as much as 25% of their client’s winnings.

If the case does not settle or conclude in favour of the client, ‘no win no fee’ actually means the client does not have to pay their solicitors fees, but will have to pay the opposing party’s fees. That is the standard risk of pursuing civil proceedings and taking someone to Court.

The concern with Conditional Cost Agreements is that solicitors are encouraged to pursue settlement, even if it is against the client’s wishes. The incentive of uplift fees means solicitors will avoid working hard for their client, and instead settle the matter cheaply to secure their uplift fee. This means the solicitor might encourage their client to settle for less than what they could have been granted, in order for the solicitor to secure the extra 25% of the settlement money in addition to their fees.

At Heckenberg Lawyers, we prefer to put our clients’ wishes first. We do not engage in Conditional Cost Agreements, rather we design our contracts as a Deferred Payment Plan.

A Deferred Payment Plan means we only charge our clients for our services, and do not charge extra fees or ’uplifts’. However, we often defer billing for our services until after the matter has settled or the case determined. This is so our clients are not out-of-pocket when pursuing a matter, and rather have the opportunity to pay for our services out of the settlement money. We do not charge an additional 25% uplift fee, rather we charge for our services only. We have practiced this way for over 25 years. We fight for our clients’ rights.

We offer experienced solicitors who are client centered and not driven by personal gains. We will always act in your best interests. This involves advising clients on if their matter is likely to succeed, advising if settlement terms proposed are acceptable or advising if it is in the client’s best interest to pursue the matter in Court.

Contact us today for advice regarding any Wills and Estate matters you wish to pursue.

The cost of contesting a will in New South Wales (NSW), Australia, can widely vary. It’s dependent on several factors such as the complexity of the case, the duration of the case, whether it settles early or goes to court, and lawyer’s fees.

It’s difficult to provide a specific figure without knowing the details of the case. Legal fees could range from a few thousand to tens of thousands of Australian dollars. More complex cases that go to court may incur costs beyond this.

Some law firms in Australia operate on a ‘no win, no fee’ basis, where they only charge their clients if the case is successful. But be aware that this doesn’t necessarily include ‘disbursements’, which are costs the law firm incurs while preparing your case, like obtaining medical reports and court fees.

No Win No Fee can also encourage law firms to settle early. This often results in less money for the client.

In many cases, if you’re successful in your claim, a portion of your legal fees can be paid from the estate. However, it’s not guaranteed that all your legal fees will be covered by the estate, especially if the court decides otherwise.

Again, you should consult with a legal professional who is familiar with the current laws and regulations in NSW for the most accurate and up-to-date information. Laws and costs related to contesting a will may have changed since my last update in September 2021.

The time limit for contesting a Will in NSW is 12 months from the date of death, providing the person died on or after 1 March 2009. This is achieved by lodging a family provision claim.

However, you can contest a Will AFTER 12 months from the date of death if you have a good reason.

Please contact us to learn more.

A report conducted in 2015 by The University of Queensland found that 74% of cases challenged in court, and 87% of those that went before a mediator, resulted in the Will being changed.

The success rate of contesting a Will depends on many factors and if you’re an ‘eligible person’. So it’s important to consult an expert Wills and Estate Planning Lawyer. Our success rate for disputing a Will is 97%. We also offer No Win No Fee for contested Wills. Please contact us for a free consultation.

Find out more here.

If you have been left out of a will or not adequately provided for in a will, you may be able to remedy that by commencing a court case.

We need to speak with you to ascertain the precise facts before we can advise you.

As an example of our cost structure, we often enter into an agreement to defer our fees and wait until a successful settlement or court case before we are paid.

We realise that often our clients can only pay for the litigation fees from the award they may obtain. We will discuss this with you in conference.

Importantly we do not charge our client the extra 25% top-up fees as many other lawyers do. We do not think it is ethical to charge our clients an additional 25% extra for no additional work.

Please contact us to schedule a telephone or Zoom conference and we can discuss your matter further.

The cost of contesting a Will depends on how complex the matter is.

If your matter involves unique or complex circumstances, the legal fees required to resolve your matter may be higher than the costs incurred for a matter that is relatively straight forward.

How do you know whether your matter is more complex?

Start by answering the following questions:

• are you an executor or beneficiary defending a Will? or
• are you an “eligible person” or an “interested person” contesting the Will?

It is important to remember that the judge hearing your case in the Supreme Court determines who pays the legal costs for a matter. However, the reality is that the vast majority (80-90%) of Will disputes are resolved during the mediation process and therefore who pays legal costs are negotiated between the parties in dispute.

If you’re an executor or beneficiary defending a Will, legal fees will generally be deducted from the estate funds. This means you won’t be required to pay anything directly yourself. It does mean however, that the value of assets which you may be entitled to, will be reduced.

The exception to this instance is whether the parties contesting the Will are doing so on the grounds that you have engaged in improper conduct while administering your duties as an executor or beneficiary. If you’re defending a Will there is no need to engage a lawyer on a No Win, No Fee agreement unless you’re being accused of inappropriately rendering a Will invalid. To understand what this means, read the information about Grounds for Contesting a Will on this page.

If you’re an “eligible person” or an “interested person” who is contesting a Will, legal costs may be paid by you directly or by funds from the estate depending on what happens in this order:

• whether the matter has been resolved during mediation.
• whether the matter proceeded through the Supreme Court process.
• the outcome of the matter – whether you won or lost the case.

All of the above variables need to be considered when looking at who pays and how much.

Understanding these possibilities is important before you initiate proceedings, especially when you’re influenced by claims of No Win, No Fee that many law firms use to solicit new cases. There are risks to using No Win, No Fee agreements.

If your claim is resolved during mediation, your legal costs will most likely be paid out of the settlement funds. That sounds like a great outcome, right? The problem is, the amount you actually receive might not be much.

Be aware of how much your lawyer agreed to with the settlement amount in relation to their professional fees. If your case was not strong and the estate was not large it is common for the negotiated settlement amount to barely cover all your legal fees and disbursements. That means you get very little to nothing while your legal representative gets most of the settlement they negotiated.

This situation can be very common with people who work with legal representatives on a No Win, No Fee agreement.

If your claim proceeds through the Supreme Court, the judge will rule on who pays the legal costs in this way:

• If you win the case, it is likely all legal costs will be paid out of the settlement funds.
• If you lose the case but the judge determines it was fair and reasonable for you to contest the will, then legal costs will be paid out of the settlement funds.
• If you lose the case and the judge determines your claim to be unfair and unreasonable the judge will require you to pay the legal costs of the other party.

It is in this third instance where a No Win, No Fee agreement does not cover your costs. You won’t have to pay the legal costs of your legal representative. You will have to pay the legal costs and disbursements of the other party. Often this amount can be significant, many tens of thousands or even hundreds of thousands of dollars.

The most important thing for you to remember is that the litigation of a Will is never risk free.

Yes, you can contest a Will on No Win No Fee.

Our experience shows that many people who contest a Will have significant financial needs and are often unable to afford legal representation. In these circumstances, we will offer a No Win, No Fee agreement to suitable clients.

A No Win, No Fee agreement means that if Heckenberg Lawyers act for you in your case, you are not required to pay our legal or professional fees until your case is settled and funds are disbursed. Any legal fees will then be paid from the estate in dispute.

We also refer to this financial arrangement as “Payment on Settlement Terms”.

If you believe you have a claim to contest a Will and you can not afford legal representation, please call us and we will assess your claim for free. It will take 20 minutes for one of our specialist lawyers to understand the key facts of your claim and then make a determination about how we can help. In some cases where the issues at dispute are complex, we may require extra time to assess your claim.

Many law firms promote and offer No Win, No Fee agreements. We recommend you consider these agreements carefully because they often include payment terms and conditions that include finance, interest or additional charges. We have written an article that will help you to be aware of what to look out for when signing up to No Win, No Fee agreements.

No Win No Fee Agreement

Here’s how it works.

If your claim is successful

If a will is successfully contested, your legal costs are generally paid from the funds within the Estate, not from your pocket.

In the process of running your case, we will incur expenses on your behalf.

For example, to initiate a claim in court you need to pay a filing fee.

We will usually try and delay these costs for you.

Despite our best attempts, some third party payments might not be delayed.

This means you may need to make small payments along the way.

We will advise you of any unavoidable disbursements before they happen.

If your claim is not successful

You will not have to pay legal fees for an unsuccessful claim if you’ve signed a No Win, No Fee agreement.

However, commencing Court proceedings is not without risk.

Most claims don’t require Court proceedings. If it does, and your claim is unsuccessful, the Court could instruct you to pay the other party’s costs.

To date, none of our clients have been required to pay a costs order.

This is because we thoroughly examine the merits of their claim before initiating legal proceedings.

We also monitor your case once it has commenced so we can advise on the prospects of success.

If you hire us, you’ll receive a document that clearly outlines the work we will do and how our legal fees are calculated.

We offer a No Win No Fee agreement and a Standard Costs Agreement.

Please book a free case assessment to find out which option is more suitable for you.

We may ask that you sign a standard costs agreement. The terms of this costs agreement are summarised below. 

Filing Fee

We ask you to pay the filing fee to initiate your case. The filing fee is set by the Supreme Court.

Professional Fees

Our professional fees are based on the expertise and skills of our specialist Will dispute lawyers who only practice law in Wills and Estates. This means they are not distracted from your case with other cases involving different law.

Different parts of the contested Will process will require the expertise or work of lawyers with different levels of knowledge. Tasks that follow standard procedures may be completed by junior lawyers. Tasks that require complex legal opinion and preparation will require senior lawyers or partners to be involved. The hourly fee charged will depend on who works on a required task.

Professional fees are paid on settlement once your claim is resolved as discussed above.

Mediation

Once your case proceeds to a hearing in the Supreme Court, you’re required to pay a hearing fee. Prior to any hearing, your case will be set down for mediation. 80-90% of claims are resolved during mediation. A court appointed mediator is free under these circumstances. Deputy registrars of the Supreme Court are assigned to mediate these cases.

Where your case is difficult you may want to pay for a private mediator. A private mediator who offers their services is a senior practitioner in this area of Will dispute law. Private mediators are therefore more experienced than court appointed mediators (deputy registrars) in understanding the issues of a complex case and what might be considered a fair outcome.

Fees for a private mediator will depend on the experience of the mediator and the length of the mediation.

Court Hearing Fees

Should your matter not be resolved during mediation and the parties decide to proceed through the Supreme Court process, you will be required to pay the relevant court fees. These court fees are determined by the Supreme Court.

Finance Related Fees

We do not believe it is ethical to offer litigation loan agreements to clients. As a result we do not charge any interest or fees for finance.

Other Fees or Charges

We don’t include any uplift fee – you will never be required to pay more than you need to.

Save Time and Money

Heckenberg Lawyers specialise in Will disputes and have successfully represented our clients in contested Will cases for over 25 years. We have a success rate of 97%.

This area of law is complex and we know what is required to obtain the correct information, follow the necessary processes and negotiate successful outcomes without spending more time than is necessary. This saves you money!

Itemised Account

We send you an itemised account every month that keeps you up to date with the running costs in your matter.

Summary

Every Will dispute is different. Each matter has its own unique circumstances which is why it is impossible to precisely calculate how much a case will cost to resolve in total.

The costs involved in contesting a Will depend on:

• How willing the other party (executors or beneficiaries) is to negotiate.
• Whether there are complicating factors and circumstances in a matter.
• The type of claim being filed.

The following people are usually eligible to contest a Will in NSW:

• Spouse
• Defacto
• Child
• Former spouse
• A person who was wholly or partly dependent on the deceased person and was a grandchild or a member of the household.
• A person who was living in a close personal relationship with the deceased.

Important:

You should seek legal advice regardless if you’re an “eligible person” or not. It’s possible you could have a claim. Please apply for a FREE case assessment here. That’s the best way of learning more about who can contest a Will in NSW.