Who pays the cost of contesting an Estate? 

Ever wondered who is responsible for covering the legal costs of disputing a will or an estate? Is it the plaintiff? The losing party? Or even the Estate itself? Read along to find out!

1. The costs involved in challenging an Estate

Determining how much it will cost to bring your claim is difficult, depending on factors such as:

  • The type of claim you are making.

  • The nature and extent of any complicating factors associated with your claim.

  • How open the executor is to resolving the dispute through mediation.

2. ‘Solicitor/Client’ costs vs ‘Party/Party’ costs

  • Solicitor/Client’ costs:

  • Refers to 100% of the fees owed to your lawyer for your legal representation.(1)

  • ‘Party/Party’ (‘ordered’) costs:

  • Depending on the nature of the dispute, it may be ordered by the Court that the unsuccessful party will be ordered to pay the successful party’s costs.

  • Are typically less than cannot exceed solicitor/client costs. The amount can be agreed between the parties or assessed by a Supreme Court Costs Assessor.(2)

3. The Estate paying for your legal costs

  • General rule used to be that the unsuccessful party must pay both their own legal costs as well as the legal costs of the successful party. (3)

  • However, recent Supreme Court decisions have complicated the matter, and have produced a set of principles, that, when applied, determine who pays for the legal costs.(4)

  • It is therefore vitally important that you seek legal advice before disputing an Estate so your lawyers can determine whether your legal costs are likely to be paid by the Estate.

4. Mediation vs litigation

  • Mediation: If the matter is settled in the mediation process (i.e. before it reaches court), you will receive an agreed-upon amount from the estate. From this, you will need to pay 100% of your legal fees, or Solicitor/Client costs. (5)

  • Litigation: If your case cannot be settled in mediation and progresses to court, the situation will be slightly different. Should your claim be successful, the court will typically rule that the estate must pay ‘Party/Party’ costs or ‘ordered’ costs. (Remember, ordered costs are typically less than ‘Solicitor/Client’ costs, so you will then need to pay your solicitor the balance out of your allotted share of the estate.) (6)

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[4] Ibid.