Contesting a will can be an emotionally draining and complex legal process. One of the primary concerns for parties involved is often the question of who bears the legal costs. Understanding the mechanisms behind cost determination can help prepare potential litigants for the financial implications of contesting a will.
General Rule: The Estate Pays
Typically, in many jurisdictions, the general rule is that the legal costs of both sides (the party contesting the will and the party defending it) are paid out of the estate. The reasoning behind this is that if the testator had made their wishes clear or had taken professional advice when writing their will, the dispute might have been avoided.
However, it’s crucial to note that the application of this rule can vary based on the specifics of the case and the jurisdiction.
Exceptions to the General Rule
While the general rule is that the estate pays, there are exceptions:
If a party’s behavior in the dispute is deemed unreasonable or if they’ve prolonged the case without cause, they might be ordered to pay all or part of the costs.
Lack of Merit
If the court finds that the contest had little to no substance or was frivolous, the contesting party might be held responsible for costs.
Sometimes, the testator might specify in their will that certain assets not be used to pay for legal costs in the event of a dispute. In such cases, costs might be borne by the respective parties or taken from a different portion of the estate.
Cost Agreements with Attorneys
Parties may enter into various fee arrangements with their attorneys:
No Win, No Fee
Some attorneys offer a ‘no win, no fee’ agreement, where the client only pays if the case is successful. However, ‘success’ must be defined clearly, and clients might still be liable for ‘disbursements’ or out-of-pocket expenses.
A traditional model where the client pays for the attorney’s services, irrespective of the case’s outcome.
The attorney’s fees might be deferred until the estate is distributed, at which point fees are taken from the client’s portion.
If a party is ordered to pay costs, but the amount is disputed, many jurisdictions allow for a process called ‘cost assessment.’ An independent party reviews the legal work done, the hours billed, and the rates charged to determine a fair cost.
There are several ways to potentially reduce the costs of a will contest:
Before heading to court, parties might consider mediation. It’s a less adversarial process where a neutral third party helps both sides come to an agreement, potentially saving time and money.
Open communication between parties can lead to early settlements, reducing the length and cost of litigation.
Expert Legal Advice
Seeking expert legal advice early can help parties understand the merits of their case, potential costs, and whether it’s worth pursuing.
The Emotional Cost
Beyond finances, it’s essential to acknowledge the emotional toll of will contests. Family relationships can be strained, and the emotional cost can sometimes outweigh the financial implications.
Determining who pays the costs in will contest cases isn’t always straightforward. While the general rule leans towards the estate bearing the expenses, individual case circumstances and jurisdictional specifics can shift this responsibility. It’s always wise to seek expert legal counsel when considering contesting a will, not only to navigate the potential financial pitfalls but also to understand the broader implications of entering into such a dispute.