The costs of contesting a will, particularly where the applicant is successful, are generally paid out of the estate. However, as Coote v Coote illustrates, where the estate is modest the costs of a successful claim can significantly reduce the value of the estate. If you are contemplating contesting a will you need to ask yourself: Will it Cost More Than its Worth?
As provided for in section 99 of the Succession Act, the Court may order that the legal costs incurred by both the applicant and defendant in contesting a will be paid out of the estate. The Court's discretion to order that costs be paid out of the estate causes family provision litigation to be viewed as low risk, in that, a party may avoid having to pay for legal representation and other associated court costs and administrative fees out of their own pocket.
However, where an estate is of modest value the costs of a successful claim can significantly reduce the value of the estate. This means that the amount of the provision that can be awarded from the estate and the value of the beneficaries inheritances can be drastically reduced. So if you are contemplating contesting a will, you need to ask yourself; Will it Cost More than its Worth?
The deceased, Adelaide Rosemary Coote, died at 99. Earlier versions of the deceased's will had purported that her estate be divided equally between her two sons. However four years prior to her death, the deceased changed her will, providing that her entire estate be left to her oldest son, Brian, save for a $25,000 legacy which was left to her youngest son, Neil.
Neil sought a family provision claim, on the basis that the deceased had failed to make adequate provision for his maintenance, education and advancement in life. The relevant facts were as follows: Neil had been unemployed since 1992 due to injury and illness, he had no superannuation, his accommodation was precarious as it depended on the will of his ex-wife and he would require significant medical treatment in the future.
The Court held that the deceased had failed to make adequate provision, given the following:
- Neil had substantial future financial needs as a result of his poor health and ongoing medical conditions. He was unemployed and reliant on a disability pension and did not have adequate funds to alleviate the physical aspects his disabilities.
- The deceased, in changing her will had had no regard to Neil's disabilities and financial position. Although, Neil was an adult child, and therefore could be expected to support himself, his case clearly fell within the circumstances identified in Anderson v Hill. In which, it was recognised that a parent is expected to provide support to their adult children where they have fallen on hard times and lack the funds to meet the demands of ill health and the ordinary vicissitudes of life.
- While, Neil had been able to divert a small surplus of his income to support his family, his income was limited and he had not accrued significant superannuation reserves. Similarly, while his ex-wife would likely continue to provide a assistance and accommodation, her income was also limited and the bulk of it would be required to meet her own needs.
- Thus, Neil was entitled to further provision. Although, it was noted that, any further provision Neil received would not 'make good' a superannuation fund he had chosen not to contribute to.
At her death, the deceased's estate was worth approximately $500,000. However, once both Brian's and Neil's legal costs were paid out of the estate, the estate was reduced to approximately $200,500. Consequently, despite the fact that Neil's estimated future financial needs amounted to roughly $197,000, the Court awarded Neil a $100,000 provision (inclusive of the initial $25,000), noting that the provision they could allocate Neil was significantly restricted by the legal costs amounted.
Did it Cost More Than it was Worth?
In this case almost 60% of the estate was expended on legal proceedings. From Neil's perspective, given that he received an additional $75,000 in circumstances were he had limited assets and was in clear need of the additional provision, contesting the will was worth it. However, it is arguable that Brian would have been significantly better off had he defended Neil's application less vigorously, as his inheritance was reduced from almost $500,000 to merely $100,500.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.