People may contest a Will if they feel that the Will does not make adequate provisions for them. Alternatively, Wills can be contested by someone who has been left out of the Will and who believes that they should be entitled to a portion of the estate. An important question which needs to be considered when handling this process is who pays to contest a Will?
This article will explore the topic of who pays to contest a Will by first analysing the factors why Wills are contested, and/or challenged. This article will also discuss who are the eligible persons who can contest a Will, and look at who pays to contest a Will.
Difference Between Contesting A Will And Challenging A Will
Although these terms are often used interchangeably, there is a slight difference between contesting a Will and challenging a Will. As mentioned above, a person contests a Will when they have not been provided for in the Will, or if they believe they should be receiving more.
On the other hand, the term “challenging” a Will is used when the very validity of the Will is being questioned. This generally happens when people believe that the testator, i.e. the Will-maker lacked testamentary capacity at the time he/she was drafting the Will.
Testamentary capacity is the legal term used to refer to the mental capacity of the testator at the time he/she was making the Will. In this regard, it is said that the testator has testamentary capacity if:
- He/she knows the extent and nature of their estate/property;
- He/she understands that they are drafting a Will, and understands the effects of doing so;
- He/she is aware of any moral obligations which they may have towards family or close friends.
Apart from lack of testamentary capacity, there are some other reasons why a Will might be challenged. These include:
- The Will was made when the testator was under undue influence from others, or as a result of forgery or fraud;
- The Will was not signed properly
- There weren’t sufficient number of witnesses to the signing of the Will thereby questioning the legal validity of the Will
What Is Contesting A Will?
Knowing what contesting a Will in detail is important if you are wondering who pays to contest a Will. The person who pays to contest a Will is doing so to claim more portion of the estate of the deceased.
In order to go through with the process of contesting a Will, a family provision claim needs to be made. A family provision claim is made by making an application to the courts. The person who feels that they have not been sufficiently provided for will make this family provision claim.
Therefore when discussing the question of who pays to contest a Will, we will need to look at the costs of making a family provision claim, and of approaching the courts.
Before we proceed with the section of who pays to contest a Will, let us see the list of eligible persons who can have a claim on the estate.
Who Pays To Contest A Will And Who Can Contest A Will?
In NSW, the Succession Act (2006) provides a list of people who are eligible to make a claim against the estate of the deceased. According to Section 57 (1) of the Succession Act (2006), the following people can make a claim:
- Spouse of the deceased at the time of death of the deceased;
- De facto partner of the deceased at the time of death of the deceased;
- Children of the deceased;
- Any person who was wholly or partly dependent on the deceased, and also lived with the deceased in the same house;
- Former spouse of the deceased;
- Any person who had a close relationship with the deceased at the time of death of the deceased
Who Pays To Contest A Will?
The overall cost of contesting a Will depends on the complexity of the matter and the estate. As an eligible person who is contesting a Will, the legal costs may be paid by you. However, depending on the result of the case, the payment may also be made from the funds of the estate.
To elaborate, there are different approaches taken while contesting a Will. For example, mediation is often used to reach a settlement. If a settlement has been reached during mediation and your matter has been resolved, the legal costs will be paid out of the funds from the settlement.
However, on the other hand, if the matter escalates and court intervention is required, there could once again be different outcomes. For example, if your claim is taken to court and you win the case, the legal costs will be paid out by the settlement funds.
On the other hand, if you lose the case and the judge deems that your claim was made on unreasonable grounds, the legal costs will need to be paid by you. This will include the legal costs of the other party, i.e., the party against whom you are making a claim.
Importantly, if you lose the case but the judge deems that your claim was reasonable, the costs may be covered by settlement funds.
Generally, if the procedures of contesting a Will are resolved through mediation and other means, the costs can be somewhere between $5000 – $8000. On the other hand, if courts are involved the costs can go above $10,000 – including the costs of making family provision claims.
Importance Of Legal Guidance
As you may have realised, contesting a Will can be a complicated affair. There are some risks involved as you can never tell whether or not your claim will be successful.
However, because the topic of contesting a Will is tricky, it is best to speak with a lawyer before you go ahead with making such claims. Lawyers can also provide a detailed overview of the costs associated with each scenario.
Get in touch with our friendly and compassionate lawyers today.