No win, no fee: Baker Love offers no win, no fee for family provision claims on a case by case basis, and it means your professional fees are not payable unless your claim succeeds.
The cost of a family provision claim is the first thing most people worry about, and the reassuring answer is that money is rarely the reason a genuine claim cannot proceed.
You can usually find out whether you have a claim, what it might be worth, and how it can be funded in a single conference, and many family provision claims can be run on a no win, no fee basis, so you are not paying legal fees out of your own pocket while the claim is on foot.
Start with a conversation, not a cheque
The sensible first step is a conference about whether you have a claim, not a decision about whether you can afford one.
In that conference you will learn whether you are an eligible person, the realistic range of what a claim might achieve, and the funding options open to you, including whether we can act on a no win, no fee basis.
For many people that single conversation removes the two biggest fears at once, which are the fear that they have no claim and the fear that they cannot afford to find out.
How costs work in a family provision claim
Costs in a family provision claim are dealt with under section 99 of the Succession Act 2006 (NSW), which gives the Supreme Court a broad discretion over who pays them and from where.
In the ordinary course a successful claimant will have their reasonable costs paid out of the estate, and an executor who defends the will reasonably is usually entitled to have their costs paid from the estate as well.
Costs are ultimately a matter for the Court rather than an automatic entitlement, which is one of the reasons a claim is assessed carefully at the outset and, in practice, why the great majority of claims settle rather than run to a contested hearing.
No win, no fee at Baker Love
We can often act on a conditional basis, commonly known as no win, no fee, which means your professional fees are not payable unless your claim succeeds, and whether it suits your claim is something we discuss with you individually.
The purpose of the arrangement is straightforward, because it allows a person with a genuine claim and limited funds to pursue it without paying legal fees along the way, and it puts our interest and yours on the same side of the table.
We are open with you from the outset about the costs that sit alongside our fees, such as disbursements like court filing fees and, in some matters, a barrister or a mediator, and about how those are managed, so that you have the full picture before you commit to anything.
If a success fee applies on a successful claim we tell you exactly what it is at the start and in writing, and we only offer these terms where we genuinely believe the claim is worth backing.
Most claims settle, and settle sensibly
The great majority of family provision claims resolve at mediation rather than at a contested final hearing, which keeps costs contained and outcomes far more predictable.
A claim that is honestly assessed at the start and sensibly run is very unlikely to end in the outcome people fear most, which is being ordered to pay the other side’s costs, because that risk arises mainly where a weak claim is pushed too far or a reasonable settlement offer is turned down.
Steering you away from that outcome is one of the main things good advice is for, and it is why we would rather tell you at the first conference that a claim is not worth running than watch it build costs that lead nowhere.
Small and modest estates
Where the estate is modest, the Court keeps a close eye on costs and has an express power to cap the costs that can be recovered, and under the current Practice Note SC EQ 07 that power extends to cases where the net distributable value of the estate, excluding the costs of the proceedings, is less than one million dollars.
That protection works in a claimant’s favour, because it keeps a modest matter proportionate and pushes both sides towards an early resolution rather than an expensive hearing, which is how almost all of these matters are in fact resolved.
What it might cost
Because the real variables are the conduct of the other side and the point at which a matter resolves, honest ranges are more useful than a fixed price:
- an initial assessment of your claim, which is a modest cost and the stage at which the right funding arrangement is put in place;
- resolution by negotiation before anything is filed, which is the cheapest good outcome available and more common than people expect;
- resolution at mediation after filing, which is the usual path and where the costs form part of the overall settlement figure; and
- a contested final hearing, which is the exception rather than the rule and is reserved for the minority of matters that genuinely need it.
For most claimants the cost of pursuing a claim is modest in proportion to what is at stake, particularly where the claim is run on a no win, no fee basis and resolves at or before mediation.
Common questions
Can I contest a will if I cannot afford a lawyer?
Often, yes, because many family provision claims can be run on a no win, no fee basis, and the conference to assess your claim is a modest cost rather than a barrier to finding out where you stand.
Does no win, no fee mean I pay nothing at all?
It means your professional fees are not payable unless your claim succeeds, though some out-of-pocket disbursements can still apply, and we explain exactly what is involved before you commit to anything.
What happens to costs if I win?
Your reasonable costs are usually paid out of the estate, and in most matters costs are dealt with as part of the settlement, so the figure that really matters is the net amount you receive.
Could I end up paying the other side’s costs?
It is possible, but in practice that risk arises mainly where a weak claim is pushed too far or a reasonable offer is refused, which is why we assess your claim honestly at the start and why most claims settle well before that point.
Is my claim worth running if the estate is small?
Often it still is, because the costs rules for modest estates are designed to keep matters proportionate, and a small estate is usually resolved early by negotiation rather than by an expensive hearing.
How Baker Love can help
Baker Love Lawyers acts in contested estate matters throughout New South Wales, from Newcastle and the Hunter through to Sydney, the Central Coast, the North Coast, and regional New South Wales.
The team includes Adrian Corbould, Special Counsel and a Law Society of NSW Accredited Specialist in Wills and Estates, a full member of the Society of Trust and Estate Practitioners, and recognised in Doyle’s Guide as a Leading Wills and Estates Litigation Lawyer (NSW) every year since 2018, whose practice has been confined to estate disputes for more than twenty years.
We act for claimants who have been left out or inadequately provided for, and for executors and beneficiaries defending claims, and we offer a range of fee arrangements, including, where appropriate, no win no fee for family provision claims.
If you think you may have a claim, the first step is a straightforward conversation about your prospects and how the claim can be funded, including whether we can act for you on a no win, no fee basis.
This article provides general information only and is not legal advice. The operation of the Succession Act 2006 (NSW) depends on the particular facts of each case, and you should obtain advice tailored to your circumstances before acting on anything in it.
ABOUT ADRIAN CORBOULD
Special Counsel | Accredited Specialist, Wills & Estates | TEP
Adrian Corbould is one of approximately 75 solicitors in New South Wales recognised by the Law Society as an Accredited Specialist in Wills and Estates, from a profession of more than 41,000, and a full member of the Society of Trust and Estate Practitioners, the international professional body for trusts and estates practitioners, whose post-nominal is TEP. For more than twenty years his practice has been confined to estate disputes.
