Challenging a Will in Queensland
Who pays the Legal Costs? As your case gets close to finalisation this will become a very important issue. A substantial amount of your final settlement will be paid in legal costs. You may have heard that your legal costs will be paid out of the estate. Well, don't be fooled; at the end of the day your costs will come out of the estate alright... your share of the estate. Your share could be reduced by as much as half. For more information on this subject give me a call.
Eric Butler 1800 960 156
Please Note: This section is about challenging the legal validity of the will itself. If you've been left out of a will or not received a fair share please proceed to our "Contesting a Will" pages.
Challenging a will is not the same as contesting a will or disputing a will. Challenging is all about whether or not the will itself is valid. The law relating to whether or not a will is valid at law is strictly a matter of factual evidence. The judges do not have the discretion they have in a family provision case.The person challenging a will needs to prove to the court that the will is invalid.
What’s different in Queensland?
The law relating to challenging a will in Queensland is fundamentally the same for all Australian States. The same principals apply wherever you are, NSW, Victoria, Queensland or any other State. In other words the law is the same. These laws are referred to as 'common law.'
The only difference between States may be the judges who could have a different view of matters and the particular court process are slightly different.
However there are specific difference in each State and in Queensland those specific differences are set out in the Queensland Act named the "Succession Act 1981 (Qld).
However, please note, the law relating to contesting a will in each State is different. Remember, ‘challenging a will’ is challenging the validity of the Will itself whereas ‘contesting a will’ is family provision law.
Challenging a will normally starts with the challenger lodging a caveat in the Supreme Court of Queensland. Only persons with 'standing' can lodge an application. Otherwise a costs order could be made against a person who does not have standing when the caveat is removed by the court.
The caveat is lodged to stop the granting of probate. A grant of probate is proof that the will is valid. Hence the application should be made before a grant. However it is possible to make an application after a grant is made. You would need to convince the court with appropriate evidence of lack of capacity; lack of knowledge and approval; fraud; undue influence;. forgery or some sort of prior contract for the court to allow the allegations to be heard in court.
If you lodge a caveat before a grant of probate the court will require evidence that you have a good case. If not your caveat will be removed. If you are able to convince the court you have a good case the court will make an order leaving the caveat in place and provide a time table for the filing of allegations and defence to those allegations.
Please remember that challenging the validity of a will is quite different to challenging the administration of the estate by the executor. So, if you have stopped probate being granted you have also stopped the administration of the estate. In such a case either agreement can be reached between the legal teams or by court order to allow either the executor to attend to any urgent matters of administration or appoint an independent interim administrator for the purpose of urgent administration.
Under normal circumstances an executor is required as soon as possible to attend to the funeral arrangements; secure the assets of the estate against any loss or damage; determine the correct ownership of the assets and clarify such things as tenancies in common and joint tenancy of property; to identify and pay any liabilities of the estate; to pay taxes if any. So as you can see some of these items need to be attended to during the possible 12 or 24 months of a court hearing to determine the allegations of invalidity.
The costs of challenging a will in Queensland are no different to any other state. The general rule of costs about costs in legal proceedings is that costs are usually at the discretion of the court but they usually follow the event. In other words the loser pays. The question of costs is quite different when you compare challenging a will to contesting a well. The court has more discretion when costs are to be determined in a matter of a will contest.
However when it comes to the cost in challenging will the court will normally follow the rule unless there are exceptional circumstances. The exceptional circumstances are usually where the court proceedings have been commenced because of a fault in either the preparation of the will or something done by the Will Maker himself or herself. In other words if the reason the matter came before the court was no fault of the applicant then in most cases the applicants costs will be paid out of the estate.
Another matter for consideration in costs orders is the conduct of the parties to the proceedings or the conduct of the legal team in the proceedings. If the conduct of either the parties of the legal team is such that warrant some criticism then in that event the court may well order different kind of costs order. The amount of costs vary between party party costs and solicitor client costs. Solicitor client costs are also sometimes referred to as indemnity costs and they are all the costs incurred by the client. Party party costs are just the cost incurred in the actual process of the matter and do not include those costs in relation to the direct contact with the client. So party party costs are always less than solicitor client costs.
If one party or the other has been caused to incur more costs because of conduct of other parties or other legal team then the court may order indemnity costs against the offending party.
For the reasons stated above it is very important to start these proceedings on the right track. If for some reason the proceedings have been started incorrectly or need a variation of the process along way it might well be the case that you will suffer a cost order against you for causing unnecessary delay or unnecessary costs.
Other Differences in Queensland
Hereunder I will summarise various facets of Challenging a Will in QLD which differs slightly from other Australian States. As I have mentioned in other pages on this site the law is much the same in all Australian States however the specific wording in the legislation of each State can be a trap for lawyers and their clients Challenging a Will. Judges in court proceedings are very often limited in their determination of a case by the precise wording of the legislation or a practice note of a particular State.
Give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.
Eric Butler: 1800 960 156