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Will Dispute Costs


In 2009 there were amendments to the Succession Act in New South Wales to broaden the concept of family. As a result there has been a steady increase in Will disputes or more specifically Family Provision Claims.

Unlike personal injury law which has become increasingly regulated in relation to legal costs, no such regulation has yet occurred in Will disputes. This can lead to the uninitiated engaging a lawyer, who is not well placed to advise them on their prospects of success in disputing a Will.

In addition to providing advice on the prospects of success in challenging a Will, your lawyer also needs to be able to inform you of the potential that, you may become liable to pay the legal fees of the other party if your claim is not handled in a professional and reputable manner, or if your claim is successful, the amount of money in the Estate may be significantly reduced to pay the legal costs of the parties to the Will dispute.

As a general rule, legal costs arising from a Will dispute are usually paid for by the Estate. However, the increasingly large legal costs being incurred in Will dispute cases has led to many Judges commenting on these costs. In a recent Supreme Court case, Geoghegan v Szelid, the Estate under dispute was valued at approximately $200,000. The legal fees associated with the Will dispute were approximately $115,000 leaving a sum of $85,000 to be distributed between the warring beneficiaries. The Judge commented in this case that the legal costs were entirely out of proportion to the gross value of the Estate.

Legal costs paid by your estate will effectively reduce your potential inheritance. To minimise legal costs and to ensure that you engage the best lawyer for your Will dispute, here are some questions you could ask a potential lawyer:

  • How many of your Will disputes are resolved through mediation without requiring the parties to incur the cost of running expensive court proceedings?
  • Has the Court ever made an order that legal costs incurred by your client, are paid by your client and not by the Estate?
  • How many Will dispute cases have you handled? Were the majority of your client’s happy with the outcome of the dispute?

To help keep legal costs to a minimum, consider engaging a lawyer who has the following attributes:

  • has practiced extensively in contested Will disputes and understands how to navigate the process successfully.
  • attempts to resolve the dispute using mediation.
  • monitors the legal costs in consideration of the value of the estate.

If you would like to discuss your case with a lawyer experienced in contested Wills we offer your first consultation free of charge. Get In Touch now.

Will Dispute - Colleen McCullough

Colleen McCullough died in January, 2015 and was known as one of Australia’s most successful literary writers. The author of the international successful novel The Thorn Birds, published in 1977, had an Estate estimated to be worth millions of dollars at the time of her death.

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Family Provision Claims - Mitar vs Mitar

In Mitar v Mitar [2017] NSWSC 647 the deceased, a widow, left behind four children, three daughters and a son, and an Estate valued at approximately $3 million dollars. In his Will the deceased left the whole of his Estate to his eldest daughter and a right to reside in the family house to his son. The deceased made no provision for his other two daughters however his eldest daughter, based on conversations had with the deceased, divided the cash in the Estate between herself and her two sisters of approximately $200,000 each.

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Successful Family Provision Claim - From a Foster Child

In this case, the deceased died aged 95 years old. She was a widow with two children, Graham aged 67 and Paul aged 65. The Will Challenge was made by Vera Hamilton, who the deceased and her late husband had cared for as a foster child for about 18 months.

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