The general rule with any litigation (that is, court proceedings) is that the unsuccessful party must pay their own legal costs as well as all (or some) of the legal costs of the successful party.
The idea behind this general rule is that it will discourage people from bringing frivolous (“vexatious”) claims against others – with the rule in place, the risk obviously is that there will be an adverse (negative) costs order against the person who brings the proceedings if they are unable to prove their claim.
However this general rule does not always apply. For example, if someone believes that they have sufficient reason to challenge a deceased’s estate, then the costs of challenging the Estate may be paid for by the Estate.
Examples of circumstances in which a challenge may be made against the Estate include:
- someone has grounds to believe that the testator did not have the relevant testamentary capacity at the time of signing their last Will;
- the Will was not executed properly;
- the deceased was unduly influenced when preparing the Will.
Alternatively, someone may wish to challenge an Estate if they believe that they have not received adequate provision under the Will pursuant to the family provision rules in the Succession Act 2006 (NSW).
So before you consider challenging an Estate, or if you are acting as the executor and received a challenge to the Estate, seek legal advice before proceeding any further so that you can determine whether or not your legal costs will be paid for by the Estate.