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.Continue Reading
Will Dispute Costs
How Much Will it Cost to Contest a Will?
Our fee structure works like this:
We ask that you sign a standard costs agreement. The terms of our costs agreement are summarised below. Our costs agreement works the same as a No Win, No Fee agreement without the extra fees and unnecessary charges detailed below.
Payment on Settlement Terms
Our professional fees are only paid when your claim is settled and funds are disbursed. We refer to this offer as “Payment on Settlement Terms”.
Unlike a No Win, No Fee agreement our payment terms do not include finance, interest or additional charges.
Save Time and Money
Heckenberg Lawyers specialise in Will disputes and have successfully represented our clients in contested Will cases for over 25 years. We have a success rate of 97%.
This area of law is complex and we know what is required to obtain the correct information, follow the necessary processes and to negotiate successful outcomes without spending more time than is necessary. This saves you money!
We ask you to pay the filing fee to initiate your case. The filing fee is $1,143 and is set by the Supreme Court.
Our professional fees are based on the expertise and skills of our specialist Will dispute lawyers who only practice law in Wills and Estates. This means they are not distracted from your case with other cases involving different law.
Different parts of the contested Will process will require the expertise or work of staff with different levels of knowledge. The hourly fee charged will depend on who works on a required task.
Once your case proceeds to a hearing in the Supreme Court, you're required to pay a hearing fee. Prior to any hearing your case will set down for mediation. 80 - 90% of claims are resolved during mediation. A court appointed mediator is free under these circumstances. Deputy registrars of the Supreme Court are assigned to mediate these cases.
Where your case is difficult you may want to pay for a private mediator. A private mediator who offers their services is a senior practitioner in this area of Will dispute law. Private mediators are therefore more experienced than court appointed mediators (deputy registrars) in understanding the issues of a complex case and what might be considered a fair outcome.
Fees for a private mediator will depend on the experience of the mediator and the length of the mediation.
Court Hearing Fees
Should your matter not be resolved during mediation and the parties decide to proceed through the Supreme Court process, you will be required to pay the relevant court fees.
Finance Related Fees
We do not believe it is ethical to offer litigation loan agreements to clients. As a result we do not charge any interest or fees for finance.
Other Fees or Charges
We don’t include any uplift fee - you will never be required to pay more than you need to.
We send you an itemised account every month that keeps you up to date with the running costs in your matter.
Every Will dispute is different. Each matter has its own unique circumstances which is why it is impossible to accurately predict how much a case will cost to resolve in total.
The costs involved in contesting a Will depend on:
- How willing the other party (executors or beneficiaries) is to negotiate.
- Whether there are complicating factors and circumstances in a matter.
- The type of claim (link to contesting a Will page) being filed.
What we attempt to do below is to explain some of these unique circumstances and how they affect what costs might be incurred and who pays those costs. Read on below for more specific information on the costs of contesting a Will.
When you consider how much it might cost you to dispute a Will, you need to answer the following questions:
- are you an executor or beneficiary defending a Will or
- are you an “eligible person” or an “interested person” contesting the Will.
It is important to remember that the judge hearing your case in the Supreme Court determines who pays the legal costs for a matter. However, the reality is that the vast majority (80-90%) of Will disputes are resolved during the mediation process and therefore who pays legal costs are negotiated between the parties in dispute.
If you’re an executor or beneficiary defending a Will, legal fees will generally be deducted from the estate funds. This means you won’t be required to pay anything directly yourself. It does mean however, that the value of assets which you may be entitled to, will be reduced.
The exception to this instance is whether the parties contesting the Will are doing so on the grounds that you have engaged in improper conduct while administering your duties as an executor or beneficiary. If you’re defending a Will there is no need to engage a lawyer on a No Win, No Fee agreement unless you’re being accused of inappropriately rendering a Will invalid. To understand what this means, read the information about Grounds for Contesting a Will on this page.
If you’re an “eligible person” or an “interested person” who is contesting a Will, legal costs may be paid by you directly or by funds from the estate depending on what happens in this order:
- whether the matter has been resolved during mediation.
- whether the matter proceeded through the Supreme Court process.
- the outcome of the matter - whether you won or lost the case.
All of the above variables need to be considered when looking at who pays and how much.
Understanding these possibilities is important before you initiate proceedings, especially when you’re influenced by claims of No Win, No Fee that many law firms use to solicit new cases. For more information about No Win, No Fee Agreements and there risks read more below.
If your claim is resolved during mediation, your legal costs will most likely be paid out of the settlement funds. That sounds like a great outcome, right? The problem is, the amount you actually receive might not be much.
Be aware of how much your lawyer agreed to with the settlement amount in relation to their professional fees. If your case was not strong and the estate was not large it is common for the negotiated settlement amount to barely cover all your legal fees and disbursements. That means you get very little to nothing while your legal representative gets most of the settlement they negotiated. This situation can be very common with people who work with legal representatives on a No Win, No Fee agreement.
If your claim proceeds through the Supreme Court, the judge will rule on who pays the legal costs in this way:
- If you win the case, it is likely all legal costs will be paid out of the settlement funds.
- If you lose the case but the judge determines it was fair and reasonable for you to contest the will, then legal costs will be paid out of the settlement funds.
- If you lose the case and the judge determines your claim to be unfair and unreasonable the judge will require you to pay the legal costs of the other party.
It is in this third instance where a No Win, No Fee agreement does not cover your costs. You won’t have to pay the legal costs of your legal representative. You will have to pay the legal costs and disbursements of the other party. Often this amount can be significant, many tens of thousands or even hundreds of thousands of dollars.
The most important thing for you to remember is that the litigation of a Will is never risk free.
What Is a No Win, No Fee Agreement?
A No Win, No Fee agreement is a marketing phrase otherwise formally recognised as a “Contingent Cost Agreement” or “Conditional Cost Agreement”. These agreements include very specific terms and conditions that usually favour the legal representative.
The name suggests you won’t have to pay legal fees unless your lawyer wins your case. The reality is different. When you read the terms and conditions you will learn that you may still be liable for costs.
The name suggests the lawyer is so confident of winning your case, they are prepared to risk their fee. The reality is that they can assess the merits of your claim and negotiate an outcome where they get paid no matter what.
The purpose of a No Win, No Fee agreement is to allow clients who are not able to pay legal fees upfront the option to pay the legal fees once a settlement is reached.
Risks Associated With No Win, No Fee Offers
With a No Win, No Fee agreement:
- You pay an “uplift fee” where you are charged up to 25% more than a normal cost agreement.
- You enter into a “litigation loan agreement” that provides a finance option which includes interest and fees.
- You may pay a “break fee”.
- You still pay the legal costs of the other party.
- You still pay disbursements.
- If you have a difficult case, lawyers may not take your matter on for fear of not getting paid.
- You’re not working with an accredited specialist in Will disputes.
The ‘Uplift Fee’
An uplift fee is often charged by firms who offer No Win, No Fee Conditional Cost Agreements. The idea is that law firms pay themselves an additional fee as a reward for taking the risk that the claim may fail.
When properly assessed, the majority of contested Will cases come with very little risk and so there is no need for a law firm to charge an ‘uplift fee’. The concept can easily be misused, particularly when a client is not familiar with the law or they don’t ask the right questions.
‘Litigation Loan Agreement’
A litigation loan agreement is offered by a third party finance company to you the litigant / lender to finance your case. The agreement allows the law firm to draw fees and costs from the loan to pay disbursements as well as their professional fees. As with any loan, interests and fees are charged as well.
The result is you either end up paying more than you need to or you receive a lower settlement amount due to the excessive costs incurred.
If for any reason you decide to stop working with a lawyer who you have signed a No Win, No Fee agreement with, you may be required to pay a “break fee” for terminating their services before a resolution has been granted.
This is one big reason you should carefully consider using a No Win, No Fee lawyer and to make certain the agreement works in your interests.
Costs of the Other Party
If the case is resolved during mediation you may end up with very little money where the value of the estate is not significant. The lawyer always gets paid first.
If you contest a Will and lose the case in court, you may be liable to pay the court costs and legal fees for the other party.
The judge does have the power to review a ‘No Win, No fee’ / Conditional Cost Agreement and set it aside if it is not fair and reasonable.
In considering what is fair and reasonable the judge will take into account whether your lawyer:
- misrepresented, even innocently, the effect of the ‘No Win No Fee’ agreement.
- failed to disclose all costs information as required under the Legal Practitioners Act.
- acted inappropriately during the handling of the case.
The Court will also consider the circumstances, and conduct of both client and lawyer before the Costs Agreement was made and during the course of the case.
The "fee" in No Win, No Fee, usually relates to a lawyer's professional charges and may not include disbursements such as court fees, experts fees, service fees, office costs and barrister or other agents fees. Disbursements are out of pocket expenses that the law firm is charged to work on your behalf.
If a lawyer considers your circumstances and on the balance of probability determines that it will be difficult for them to prove a fair and reasonable outcome, they will most likely not take your matter on because they risk not being paid.
The practice of law with regard to Wills and Estates is complex. It involves common law principles as well as equity principles. This means that judges make decisions both on points of law as well as what they consider to be fair and reasonable. What is considered fair and reasonable is subjective and may be different for one judge compared with another.
When doing your research for a lawyer to work with, be sure to choose a lawyer who only practices in Wills and Estate law. Many firms who practice many areas of law such as family law, criminal law and compensation law, are offering law services in this area as they have recognised the number of Will disputes increasing. If they are not a specialist in Will disputes they will take longer to navigate the process and possibly make incorrect decisions. This extra time costs you money.
Another consideration is that many of the large law firms have only one Will dispute specialist on their legal team. They then have to rely on other staff to assist them with their caseload. The issue for you is that you may rarely get to communicate with “your lawyer” if you require advice or assistance.
How to Get the Best Deal
Lawyers often attract a bad reputation for the fees they charge. People hate to be taken advantage of and pay more than they need to for a service.
We understand that it is reasonable for a client to expect transparency around how much their case may cost. We are proud, that for over 25 years Heckenberg Lawyers have always acted in an honest and ethical manner when it comes to explaining our services, what you can expect and what it may cost you.
We are experienced Will dispute lawyers and we recommend that you be aware of some of the tactics other law firms use to get your business. We advise that you take these precautions:
Get at Least Two Opinions on Your Situation
Speak with at least two lawyers about your claim. If both lawyers agree that your claim is strong and there is little chance of you losing, then there is no need for you to be offered a No Win, No Fee agreement with unreasonable terms and conditions. All agreements should provide for professional fees to be paid on settlement.
Get Independent Advice on a No Win, No Fee Agreement
If you have been offered a No Win, No Fee agreement by a law firm, get another lawyer to review the agreement before you sign it. You want to make sure many of the risks we have discussed either don’t exist or are in your best interests.
Ignore ‘Risk Free’ claims
If you see any claims by a law firm that influence you to contest a Will without risks, ignore them. I described earlier that Wills and Estate law is complex and that it involves common law principles as well as equity principles. This means that judgements are made using both a point of law as well as what a judge considers fair and reasonable. For this reason, there are always risks.
If You Decide to Use a No Win, No Fee Agreement
If you have completed all your due diligence and decided to use a lawyer that has offered you a No Win, No Fee agreement, in order for it to be valid, it must:
- Define exactly what type of outcome will allow an uplift in fees.
- State the basis for the fee uplift and give an estimate of it (or a projected range, with major variables along such a range).
- Be in written, clear plain language.
- Be signed by the client.
- Confirm the client has been advised of the right to seek independent legal advice about the agreement.
- Confirm that the client has 5 clear business days after signing to ‘cool off’.
- Be used only where the chance of the case failing is significant.
- Not allow, in a court dispute, the fee uplift to exceed 25% of costs otherwise payable.
- Notably, the agreement can require the client to pay (win, lose or draw) for disbursements. These may include out-of-pocket expenses of the lawyer, such as Barrister’s fees; Court fees; Fees for expert reports etc. Bear in mind that in a contested court case, disbursements alone can sometimes amount to tens of thousands of dollars.
A No Win, No Fee / Conditional Costs Agreement can’t direct a success fee or fee payable as a percentage of the award or settlement obtained.