Estate litigation enjoys a relatively unique status in litigation.  In most court cases, it is relatively standard for the losing party to be ordered to pay the legal costs of the winning party.  However, it is relatively standard for a further provision application to be resolved on the basis that the estate pays the legal costs of the applicant (the person contesting the will), as well as the legal costs of the estate (defending against the applicant’s claim).

Will the estate pay my costs?

That being said, this is by no means a general rule and where the courts are not satisfied that an applicant’s claim is proper and appropriate, they have dismissed those applications and ordered that the applicant pay the estate for the legal costs of defending the claim.  For this reason, no person should ever assume it is guaranteed their costs will be paid by the estate.

Why is negotiation preferable?

The courts discourage claims that lack merit or where the estate is very small, and encourages it to be settled out of court.  For this reason, a majority of estate disputes are settled by negotiation or at mediation. This prevents the estate from being eroded by legal fees, which can happen if the matter needs to be settled in the court system. 

One of the benefits of these resolutions is that the parties themselves can control the outcome, and limit the costs that would otherwise be incurred in litigating a further provision claim to contested trial before the court.  If settled in this manner, it is ordinary for the settlement agreement to include provisions concerning payment of each party’s legal costs.

How expensive is a litigated trial and hearing?

If a family provision claim proceeds through to litigated trial and hearing, then it is not uncommon for legal costs to exceed $75,000 for the applicant alone – let alone the costs of the executors in defending the application, which may be approximately the same.  These legal costs can impose a significant burden on the estate, and so it is incumbent upon the parties to litigate matters efficiently, without undue delay and to focus only upon the relevant matters. 

In certain circumstances, we can act on behalf of applicant’s on either a “no win, no fee” or delayed payment basis. Please contact us to discuss your matter and circumstances, and to arrange a free no obligation consultation.