If someone contests a Will, who pays? People contest a Will if they believe that they should receive an inheritance or if they received inadequate provision. There are three scenarios worth noting if people want to know who will pay the legal costs for contesting a Will. These are:
If Someone Contests a Will, Who Pays the Legal Fees: Scenario 1
If parties settle their Will dispute through mediation, the claimant will receive an agreed-upon amount from the deceased’s estate. The claimant will then pay their legal fees. In case parties cannot settle the matter through mediation, the situation may change.
If Someone Contests a Will, Who Pays the Legal Fees: Scenario 2
If someone contests a Will, who pays if the claim is unsuccessful? The claimant with an unsuccessful claim will pay the other party’s costs. However, the judge will ensure that they will reject a claim if it’s within unreasonable grounds. If the claim is successful, payment of the legal fees will come from the settlement and estate funds. Claimants will also have to pay a filing fee to the court.
If Someone Contests a Will, Who Pays the Legal Fees: Scenario 3
The court may make the following orders in cases of who pays the legal costs in family provisions cases:
- Each party covers their own legal costs
- The estate covers the costs for both parties
- The estate contributes to the expenditures associated with a particular issue
- The plaintiff (person filing the case) pays part of the legal costs of a particular issue
- The losing party pays the legal costs of the winning party
Contesting a Will takes up a lot of time for the parties when they are commencing court proceedings. Moreover, there are a lot of people involved than just the party in Will contests. It could be necessary to pay the costs of contesting a Will upfront. However, the estate may pay an applicant’s charges if their lawsuit is successful. This article will outline the topic ‘if someone contests a Will, who pays?’.
If Someone Contests a Will Who Pays: Relevant Factors
Every single case has unique facts, characteristics, and parties involved in the supreme court process. The law does not define who gets an inheritance and who pays the legal costs in Will disputes. Courts will consider a number of relevant factors that affect the lives of the people included in the Will like:
- If the claimant received adequate provisions in the Will
- The claimant’s future needs
- If there are other people who are interested in the deceased estate
- If the Will is valid. Invalid Wills typically require Will challenges which are different from Will contests.
- If the deceased person has unnamed children or spouses that need the inheritance more than the claimant.
- Any other relevant factors
Regardless of any of these determining factors, it’s important to seek legal advice. The Federal Circuit and Family Court of Australia lays out their court fees here.
Who Can View a Will?
When talking about ‘if someone contests a Will, who pays?’, it’s important to discuss who can view the Will first. In NSW, Section 54 of the Succession Act 2006 outlines the people who are qualified to view a Will and receive a copy.
The executor used to be unable to access the Will, which had to be obtained from the registrar after Probate was granted. Executors are the people responsible for distributing the Will’s assets to beneficiaries and handling the deceased’s financial matters. Here are the people who can view and receive a copy of a Will:
- Any individual included in the will, regardless of whether they are a beneficiary
- Any individual referred to or identified as a beneficiary in a prior will
- The deceased person’s children, surviving spouse, or de facto partner (of either sex).
- A deceased person’s parent or legal representative
- any eligible person for a share of the deceased person’s estate if they had passed away intestate.
- Anyone who might have a claim against the decedent’s estate, including creditors.
If Someone Contests a Will Who Pays: Family Provision Claim
Family provision claims assure the deceased person’s family to receive adequate provisions from the deceased’s estate. A court must receive an application for a family provision claim within 12 months of the decedent’s passing. When evaluating the application, the court will take the following factors into account:
- How the claimant and the deceased were related
- The financial debts that the deceased owes to the claimant
- The estate’s market worth
- The claimant’s financial position, including their immediate and future needs
- The claimant’s physical and mental capacity
- Whether the claimant received financial support from the deceased before their death
- The lifestyle and character of the claimant
- Additional claims against the estate
When talking about ‘if someone contests a Will, who pays?’, it’s important to know who can request family provision orders. These people are:
- The surviving spouse at the time of the deceased’s death
- A person who shared a de facto home with the deceased at the time of their passing
- A surviving child of the deceased
- A former spouse or partner of the deceased
- A person who was at all times a member of the dead person’s household and was either completely or partially dependent on them.
- A grandchild who was ever solely or partially reliant on the deceased
- A person with whom the deceased individual shared a close personal relationship at the time of their death.
Importance of Estate Planning With JB Solicitors
1. Naming Specific Beneficiaries
Estate planning allows Will-makers to name specific beneficiaries in their Will. Will-makers may also leave out people who he/she thinks are not worthy of receiving any assets. Furthermore, they may also make provisions with our family lawyers that can prevent Will contests or challenges.
2. Protecting Family Members and Beneficiaries Financially
Estate planning also allows Will-makers to provide adequate provisions for their family members. Our estate planning lawyers value not just the Will-maker’s wishes, but also the Will-maker’s family’s wishes. We can help Will-makers plan what their family members will receive like:
- Minimised taxes for beneficiaries receiving certain assets
3. Prevent Family Disputes
Will contests and challenges are difficult to deal with especially after the Will-maker has passed away. With JB Solicitors’ professional legal advice and counsel, we can help Will-makers prevent these disputes. It’s only advisable for Will-makers to seek advice so they can have peace of mind before their passing.
Seek Legal Advice From Will Dispute Lawyers
If a person has such claims that contesting a Will is necessary, we can also advise them on what steps to take. While the obvious way to deal with Will disputes are going through a court hearing, there are other cost-effective ways to deal with these legal matters.
JB Solicitors have mediation and arbitration services for parties who want to come to a legally binding fee agreement without involving the court.
Contact our Wills and estate litigation lawyers today for more information about ‘if someone contests a Will, who pays’ before initiating legal proceedings.