Can legal fees be reimbursed for a successful will contest?

PUBLISHED 17 Dec 2019

Having to deal with a loved one’s Will can be a challenging experience. Unfortunately, whether due to conflicts, disagreements, or a misunderstanding, it can become even more difficult when someone files a claim contesting the Will.

Several different people typically have standing to contest a will:

  • A current spouse
  • A former spouse
  • A current de facto partner
  • A former de facto partner
  • Any children or step-children
  • Any grandchild that was dependent upon the decedent and lived in the same home
  • A person in a close personal relationship and living with the decedent upon their death

While mediation might resolve the situation, there’s always a chance the contested Will will necessitate litigation. When it reaches this point, it means costs will most likely be incurred. These costs cover different aspects of the claim, such as a court filing fee, attorneys’ fees, and legal administrative fees.

This then begs the question of who is ultimately responsible for these legal fees?

Determining who pays legal fees for a contested Will

Typically, the outcome of the claim determines who ends up paying any legal fees.

If the claimant is successful, the estate pays the claimant’s costs as well as its own legal fees. Conversely, if the claim fails, the judge can order the claimant to pay the estate’s costs. However, there are other risks in commencing court proceedings, and other factors that may determine if the estate pays legal costs.

For example, suppose the decedent’s conduct and habits surrounding the estate planning were completely out of character or questionable. This could reasonably require an investigation into the decedent’s testamentary capacity before the court can make a ruling one way or the other. In this case, even if the claim is unsuccessful, there’s a chance the court may determine that the estate pays the legal fees the claimant incurred.

Another example is if the decedent or someone seeking residuary distributions from the estate incited the litigation. Depending on the circumstances, the court may order the estate to pay the costs for an unsuccessful Will contesting.

If you think you need to contest a Will, or just to find out more about the ins and outs of contesting a Will and our excellent service of providing legal support on a No Win No Fee basis, contact Gerard Malouf and Partners today.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.