contesting-a-will

Contesting a Will “No Win No Fee” - What You Need To Know

By Andrew O’Bryan

Many lawyers act in Will Contest Cases in Victoria “No Win No Fee”.

In a “No Win No Fee” cost agreement, a lawyer agrees with the client not to charge any fees for their services unless and until the client “wins” their case. The lawyer agrees to take the risk that the case might be “lost” – and if this happens, the lawyer does not charge any service fees. The client agrees to pay the lawyer if the case succeeds out of the money recovered from the other party.

If you are looking to engage a lawyer on a “No Win No Fee” basis to Contest or Defend a Will from Challenge, what do you need to know?

1.Must there be a “No Win No Fee” agreement in writing?

Yes, there must be a “No Win No Fee” agreement in writing.

2.What information should be in it?

Matters it must address include -
(a) Your right to negotiate a cost agreement with the law practice.
(b) Your right to seek independent legal advice before entering the agreement.
(c) That a cooling off period of at least five (5) business days applies within which you can provide written termination of the agreement.
(d) The circumstances that constitute a “win”.
(e) The basis upon which legal costs will be calculated.
(f) An estimate of total legal costs.
(g) If Contesting the Will involves litigation what costs you would likely recover if you “win”. Alternatively what costs you may be ordered to pay if you “lose”.

3.Am I required to pay outlays irrespective of result?

(a) Outlays are monies the law firm spends in pursuing the claim and include Court filing and barrister’s fees.
(b) The terms of a “No Win No Fee” cost agreement should state whether or not the firm will pay the outlays.

4.What is an uplift fee?

(a) A law practice is allowed to charge an uplift fee in a “No Win No Fee” cost agreement. This is an additional fee over and above any fees that are otherwise payable, and it is payable only if you “win”. An uplift fee may be stated in dollar terms but is usually calculated as a percentage of the fees (excluding outlays) otherwise payable.
(b) In either case however, the uplift fee must not exceed 25% of the fees otherwise payable. It must also be separately identified in the cost agreement. The lawyer must give the client an estimate of what the uplift fee is likely to be and explain what they will take into account in deciding how much the fee will be.
(c) Not all lawyers charge an uplift fee.
(d) Galbally & O’Bryan does not charge uplift fees in Will Contest Cases.

In summary, what should I do when considering a “No Win No Fee” cost agreement in contesting a Will?

(a) Carefully read the terms of the agreement and understand them. If unsure ask for them to be explained.
(b) The law firm must give you an estimate as to how much the case will cost.
(c) Consider the estimate carefully and ask questions if you do not understand it.
(d) Consider whether you need independent legal advice. Get it if you are in any way unsure about what you are getting into.
(e) Check if the law firm is charging an uplift fee and how much it is. This can substantially affect the ultimate cost of the case and the amount you get if you “win”.

Galbally & O’Bryan has extensive experience in acting both for claimants and estates in Will Contest Cases.

We can also provide expert advice regarding “No Win No Fee” cost agreements and in your Will Contest Case generally.

For further information contact Andrew O’Bryan on (03) 9200 2533 or by email.