Contesting a Will NSW Costs

Who pays the costs?

One of the first questions clients ask us when seeking advice as to whether they can contest a will is ‘who pays the costs of contesting a will in NSW?’ The answer depends on the circumstances of the case.

Generally the rules of Court provide that in civil proceedings, such as contested wills, costs follow the event, meaning that the unsuccessful party pays the successful party’s costs.

This general rule is modified by the Court depending on the type of claim in question, the circumstances of the making of the will, and the conduct of the parties throughout the proceedings, specifically, whether the parties made offers which ought to have disposed of the proceedings prior to the hearing.

Type of claim and circumstances of the will

On some occasions the proceedings can be said to have been caused not by the fault of either party, but by the testator by reason of the uncertain nature of the execution of the will or capacity of the testator to make the will. In proceedings where the defendant properly brings a challenge to the validity of the will, because its execution did not comply with the formal requirements of the Succession Act, or because the circumstances were highly dubious, then it is common for a Court to order that the costs of the defendant and/or plaintiff, albeit unsuccessful, be paid from the assets of the estate.

Conduct and Offers of Compromise

A plaintiff may successfully bring an action to contest the will on the basis that the provision made for them was inadequate, yet fail in obtaining an order for costs because the award made by the Court is less than an offer made by the defendant at an earlier stage in the proceedings. This concept ensures that both plaintiffs and defendants conduct proceedings in a reasonable manner and places an added risk to a plaintiff who has rejected an offer in favour of a Court determined outcome.

Do you accept no win no fee contested wills cases?

The contested estates division of Prime Lawyers consists of lawyers experienced in both contesting and defending wills in NSW. We appear regularly in the Supreme Court Probate and Family Provision list and represent clients throughout Sydney, regional NSW and interstate. Before we accept a case we conduct an assessment of your case and your personal circumstances free of charge and at no obligation to you. If you have a case then for approved applicants we offer ‘no win no fee’ terms in accordance with the provisions of our costs agreement. By doing so we are able to represent clients who would ordinarily be denied expert legal representation in this field.

To commence your no obligation free assessment of your contested wills case then get in touch with one of our contested wills lawyers by calling us or contacting one of our offices at Sydney, Chatswood, Parramatta, Sutherland or Wollongong by clicking here.