The average cost to contest a Will in Australia may vary depending on your individual circumstances. Before we explore the topic of average cost to contest a Will, let’s first understand what we mean by “contest” a Will.
As we know, a Will is a written document that highlights a person’s wishes and intentions about estate distribution. A Will comes into effect after the Will-maker passes away. The executor of the Will distributes assets and estate to beneficiaries, according to the Will.
Now, contesting a Will means there are parties who are disputing the Will. This happens generally when a party or multiple parties are unhappy with the contents of the Will. If a person feels that they should have more claims to estate and property, they can choose to contest a Will.
The average cost to contest a Will depends on different factors. Moreover, if you are reading this article to find the average cost to contest a Will, you also need to check if you are eligible to contest a Will.
Why Do People Contest Wills?
Parties can either challenge or contest a Will. Firstly, as mentioned above, a person may contest a Will if they feel they are entitled to receive more provisions. On the other hand, if someone questions the very validity of a Will, they can challenge a Will.
How to determine the “validity” of a Will? For a Will to be legally valid, the Will-maker needs to fulfil certain eligibility criteria at the time he/she is writing the Will.
The eligibility criteria to write a legally valid Will is as follows:
- The person must be over 18 years of age unless he/she is married;
- They must have testamentary capacity;
Testamentary capacity means that the person must understand the legal effect of writing a Will. Moreover, they must know the extent of their assets, and are aware of people who would normally benefit from their estate.
Lastly, the Will-maker must not be affected by any mental illness, injury or disability that can impair their decision-making ability. They must be able to make rational decisions about who should benefit from their Will.
If a party finds that the Will-maker did not have testamentary capacity when they wrote the Will, they can challenge the Will. However, in this article, we will be focusing on contesting a Will and the average cost to contest a Will.
Are You Eligible to Contest a Will?
The legislation provides information on who can contest a Will. Often, legislation can vary form state to state in Australia. For example, in NSW, the Succession Act (2006) provides a list of people who can contest a Will.
- De facto partner or spouse of the deceased;
- Children included adopted children;
- Former spouse or former de facto partner;
- People who were financially dependent on the deceased;
- Any person whom the deceased was living with in a close person relationship before passing away
Average Cost to Contest a Will
Depending on how the case or matter proceeds, the average cost to contest a Will differs. For instance, the average cost to contest a Will is around $5000 – $10,000 if the matters stays out of the court.
On the other hand, the average cost to contest a Will is higher if the matter escalates and if it is taken to court. In this case, the average cost can be around $20,000 and higher.
For these reasons, parties must always try and negotiate to reach settlements. Approaching courts is not only more expensive, but also more time-consuming.
Importantly, these costs include the cost of filing family provision claims, and legal costs of hiring estate lawyers.
Family Provision Claims
People who wish to contest a Will need to file family provision claims. A person can make a family provision claim to indicate that the Will-maker has not made adequate provisions for them.
Furthermore, if the person is successful with their family provision claim, the court may change the Will. As a result, estate distribution will also vary.
The list of persons mentioned above can file a family provision claim. Importantly, there are certain time limits that they need to keep in mind. They must make a family provision claim within one year from the date of death of the deceased.
Average Cost to Contest a Will: Who Pays?
As mentioned above, the average cost depends on the approach that people take to dispute a Will. For example, if they choose to attend mediation to settle, then the costs can be paid out of the funds obtained during settlement.
Generally, the person making the family provision claim will make the payment. However, if the result of the case is positive and in their favour, then the person can make legal payments from the funds of the estate.
However, if the matter escalates to the court, and if the results are not in favour of the person making the claims, he/she will incur all legal costs. Oftentimes, this also includes the costs of the other party against whom he/she is making the claim.
Wills & Estate Planning Lawyers
When you are contesting a Will, the result will depend on how simple or complex the assets are, and how strong you claim is. However, it is important to consider dispute resolution and mediation before approaching courts.
As we have seen, this is not only more cost-effective, but it also saves time. Our mediators can help you bring your claims forward to relevant parties such as the executor of the Will, or other beneficiaries of the Will.
By having a detailed discussions and negotiation properly during your mediation session, you can ensure that you are successful with your claim.
For more information, contact our team today.