October 28, 2014

The old principle that legal costs arising from disputing a will are usually paid out of the estate (“known as the Probate Costs Rule) is outdated and in need of reform according to the Supreme Court.

In a recent case, the deceased had hand written his intentions for his estate in a note book. It was not signed or witnessed as is normally the case for a valid will. Nevertheless, the Court found that the deceased, having studied law and being aware of succession laws, intended that hand written note to form his will and accordingly, the wishes set out in that hand written note were found to have been a valid will.

However, the Chief Justice made adverse comment about legal costs for parties who were challenging the validity of a will coming out of the estate. His Honour noted that that there is an increase in contested estates appearing before the Court and flagged that this may well be due to the fact that such legal challenges can be made with no fear of the risk of being out of pocket.

The Chief Justice commented that parties who wanted to challenge a will, knowing that their costs would be paid out of the estate regardless of the result, did not have any incentive to appropriately weigh up the risks and benefits of entering into litigation in the knowledge that they may have to pay legal costs. His Honour referred to an increasingly frequent scenario where parties contest wills and incur such great legal costs that in the end there is very little left in the estate for the ultimate beneficiaries. His Honour stated, “the bottom line is that the disputes are between private parties advancing competing claims to the testator’s bounty for their private financial benefit.”

Whether the laws will be amended to change this old rule relating to legal costs of disputing a will remains to be seen.

If you wish to challenge a will we recommend that you contact a wills specialist who will advise you not only of the prospects of success in challenging the validity of a will but also the costs that are likely to be involved. For cases involving deceased estates and inheritance claims a specialist estates lawyer at Websters Lawyers in Adelaide can meet with you for an initial consultation at no charge to help you understand the process involved.

Fielder v Burgess [2014] SASC 98