Can you afford the costs of challenging a will?

Applicants who challenge wills in order to gain a greater share of an estate (and their solicitors) have long taken comfort from the 1994 decision of Singer v Berghouse. In that case the High Court said that, generally, costs orders will not be made against unsuccessful applicants and that everyone’s costs will  be paid from the estate, particularly if a cost order would have a detrimental effect on an applicant’s financial position.

However, in light of the flood of applications to challenge wills over the past few years, especially in relation to small value estates, the courts seem to be changing their attitude towards costs orders.

This is demonstrated by the recent Victorian decision of Moerth v Moerth. The deceased had two sons, both of whom brought claims for a greater share of the estate. One son was successful, but the other was not. The unsuccessful applicant failed, not because he was not eligible to make a claim, but because the judge ultimately decided that his financial position did not warrant any increase in his share of the estate.

The court ordered the unsuccessful son to pay not only his own costs, but also the estate’s costs of defending the claim even though he would have to sell property to meet the costs order.

Written by Hannah Kulaga, Lawyer