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Our lawyers will clearly explain how No Win No Fee works.

We pride ourselves on being open and honest.

Be careful of law firms that offer “No Win No Fee”

A No Win No Fee agreement is formally recognised as a “Contingent Cost Agreement” or “Conditional Cost Agreement”. These agreements include very specific terms and conditions that usually favour the legal representative.

The marketing phrase suggests you won’t have to pay legal fees unless your lawyer wins your case. The reality is different. When you read the terms and conditions carefully, you will learn that you may still be liable for costs.

The phrase also suggests the lawyer is so confident of winning your case, they are prepared to risk their fee. The reality is that they can assess the merits of your claim and negotiate an outcome where they get paid no matter what. I mean let’s be real – have you ever heard of a lawyer who doesn’t get paid for their work?

The purpose of a No Win, No Fee agreement is to allow clients who are not able to pay legal fees upfront the option to pay the legal fees once a settlement is reached.

Is No Win No Fee a good idea?

Is a no win no fee a good idea?

It depends.

There are a few risks associated with no win no fee agreements.

With a No Win, No Fee agreement:

• You pay an “uplift fee” where you are charged up to 25% more than a normal cost agreement.
• You enter into a “litigation loan agreement” that provides a finance option which includes interest and fees.
• You may pay a “break fee”.
• You still pay the legal costs of the other party.
• You still pay disbursements.
• If you have a difficult case, lawyers may not take your matter on for fear of not getting paid.
• You’re not working with an accredited specialist in Will disputes.

What is an ‘Uplift Fee’?

An uplift fee is often charged by firms who offer No Win, No Fee Conditional Cost Agreements. The idea is that law firms pay themselves an additional fee as a reward for taking the risk that the claim may fail.

When properly assessed, the majority of contested Will cases come with very little risk and so there is no need for a law firm to charge an ‘uplift fee’. The concept can easily be misused, particularly when a client is not familiar with the law or they don’t ask the right questions.

What is a ‘Litigation Loan Agreement’?

A litigation loan agreement is offered by a third party finance company to you the litigant / lender to finance your case. The agreement allows the law firm to draw fees and costs from the loan to pay disbursements as well as their professional fees. As with any loan, interests and fees are charged as well.

The result is you either end up paying more than you need to or you receive a lower settlement amount due to the excessive costs incurred.

What is a ‘Break Fee’?

If for any reason you decide to stop working with a lawyer who you have signed a No Win, No Fee agreement with, you may be required to pay a “break fee” for terminating their services before a resolution has been granted.

This is one big reason you should carefully consider using a No Win, No Fee lawyer and to make certain the agreement works in your interests.

Costs of the Other Party

If the case is resolved during mediation you may end up with very little money where the value of the estate is not significant. The lawyer always gets paid first.

If you contest a Will and lose the case in court, you may be liable to pay the court costs and legal fees for the other party.

The judge does have the power to review a ‘No Win, No fee’ / Conditional Cost Agreement and set it aside if it is not fair and reasonable.

In considering what is fair and reasonable the judge will take into account whether your lawyer:

1. misrepresented, even innocently, the effect of the ‘No Win No Fee’ agreement.
2. failed to disclose all costs information as required under the Legal Practitioners Act.
3. acted inappropriately during the handling of the case.

The Court will also consider the circumstances, and conduct of both client and lawyer before the Costs Agreement was made and during the course of the case.

Disbursements

The “fee” in No Win, No Fee, usually relates to a lawyer’s professional charges and may not include disbursements such as court fees, experts fees, service fees, office costs and barrister or other agents fees. Disbursements are out of pocket expenses that the law firm is charged to work on your behalf.

Difficult Cases

If a lawyer considers your circumstances and on the balance of probability determines that it will be difficult for them to prove a fair and reasonable outcome, they will most likely not take your matter on because they risk not being paid.

Accredited Specialists

The practice of law with regard to Wills and Estates is complex. It involves common law principles as well as equity principles. This means that judges make decisions both on points of law as well as what they consider to be fair and reasonable. What is considered fair and reasonable is subjective and may be different for one judge compared with another.

When doing your research for a lawyer to work with, be sure to choose a lawyer who only practices in Wills and Estate law. Many firms who practice many areas of law such as family law, criminal law and compensation law, are offering law services in this area as they have recognised the number of Will disputes increasing. If they are not a specialist in Will disputes they will take longer to navigate the process and possibly make incorrect decisions. This extra time costs you money.

Another consideration is that many of the large law firms have only one Will dispute specialist on their legal team. They then have to rely on other staff to assist them with their caseload. The issue for you is that you may rarely get to communicate with “your lawyer” if you require advice or assistance.

How to Get the Best Deal

Lawyers often attract a bad reputation for the fees they charge. People hate to be taken advantage of and pay more than they need to for a service.

We understand that it is reasonable for a client to expect transparency around how much their case may cost. We are proud, that for over 25 years Heckenberg Lawyers have always acted in an honest and ethical manner when it comes to explaining our services, what you can expect and what it may cost you.

We have experienced Will dispute lawyers and we recommend that you be aware of some of the tactics other law firms use to get your business:

Get at Least Two Opinions on Your Situation

Speak with at least two lawyers about your claim. If both lawyers agree that your claim is strong and there is little chance of you losing, then there is no need for you to be offered a No Win, No Fee agreement with unreasonable terms and conditions. All agreements should provide for professional fees to be paid on settlement.

Get Independent Advice on a No Win, No Fee Agreement

If you have been offered a No Win, No Fee agreement by a law firm, get another lawyer to review the agreement before you sign it. You want to make sure many of the risks we have discussed either don’t exist or are in your best interests.

Ignore ‘Risk-Free’ claims

If you see any claims by a law firm that influence you to contest a Will without risks, ignore them. I described earlier that Wills and Estate law is complex and that it involves common law principles as well as equity principles. This means that judgements are made using both a point of law as well as what a judge considers fair and reasonable. For this reason, there are always risks.

If You Still Decide to Use a No Win, No Fee Lawyer

If you have completed all your due diligence and decided to use a lawyer that has offered you a No Win, No Fee agreement, in order for it to be valid, it must:

• Define exactly what type of outcome will allow an uplift in fees.
• State the basis for the fee uplift and give an estimate of it (or a projected range, with major variables along such a range).
• Be in written, clear plain language.
• Be signed by the client.
• Confirm the client has been advised of the right to seek independent legal advice about the agreement.
• Confirm that the client has 5 clear business days after signing to ‘cool off’.
• Be used only where the chance of the case failing is significant.
• Not allow, in a court dispute, the fee uplift to exceed 25% of costs otherwise payable.
• Notably, the agreement can require the client to pay (win, lose or draw) for disbursements. These may include out-of-pocket expenses of the lawyer, such as:

1. Barrister’s fees;
2. Court fees;
3. Fees for expert reports etc.

Bear in mind that in a contested court case, disbursements alone can sometimes amount to tens of thousands of dollars.

Finally, no lawyer offering a No Win, No Fee agreement can request a success fee or a fee payable as a percentage of the award or settlement obtained.

Now we’ve removed the emotion from the No Win, No Fee marketing message, you can be the judge as to who benefits most and whether it is in fact a good deal for you.

The case also raised important questions as to where a person resides at the time of death and jurisdiction of the Family Provision Act 1982 (NSW).

The critical questions in determining whether a person contesting a will under the Family Provision Act will be successful are; has the person made out a claim for relief on the facts, and if so what provision should be made for them.

The deceased lived almost his entire life in New South Wales and the address given on his will was in NSW. He moved to Queensland and died 3 weeks later. An important question arose as at the date of death was the deceased domiciled in New South Wales his domicile of origin, or Queensland as a domicile of choice. The court held that a person retains their domicile of origin unless they adopt a domicile of choice, which requires them to be lawfully in the new state and have the intention of remaining there indefinitely. Provided the intention could be proved the length of time in the state is immaterial.

This was an important question as the law of NSW is that there is no jurisdiction under the Family Provision Act for a court to make an order affecting real property (e.g. land) outside New South Wales if the person was domiciled out of NSW. The deceased owned property in Queensland as well as liquid assets in N,SW.

In this case, the deceased was aware that he was dying and had drawn a cheque as a gift. However, the cheque was not deposited until a day after the deceased died. The cheque was paid and the money transferred to another account.

The court said the gift was imperfect because even though the bank honoured the cheque as the cheque had not been cleared as at the date of death the money formed part of the deceased estate. The next question was should the money be repaid to the estate.

On this question the court considered the intention of the deceased and found that it was clear that the payment was a gift and that the bank paid the cheque before being notified of the death. It also considered the effect of the Cheque Act 1986 (Cth), community usage of cheques together with modern judicial reasoning. The court concluded that although the established legal principle is that Equity will not usually assist someone who has an imperfect gift it will not strive officiously to defeat them. As a result the person who had received the gift in this case was able to retain the money and did not have to repay the estate.

This case addresses some of the critical aspects of contested will litigation and illustrates how the law evolves to deal with modern circumstances using the rules of Equity, precedent law as will as applying and interpreting relevant legislation.

See our Will Dispute Lawyer page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.

Disagreements between Executors can have an immensely negative impact on the administration of a deceased Estate, from slowing down the distribution of the Estate to the beneficiaries named in the Will, to increasing legal costs and time-consuming, expensive court proceedings to resolve Executor disputes.

A good example of the issues that can arise when Executors are in disagreement can be seen in the recent New South Wales Supreme Court case of – Walker v Walker

The Estate of Ngaere Joy Walker, late of Mortdale. In this case, Ngaere Walker died in 2011 leaving a Will appointing two of her sons as her Executors. They were also equal beneficiaries under her Will with the Estate valued at approximately $1.2 million. By the time the court proceedings commenced in 2016 the Estate of the deceased had been uncompleted for five years as a result of the disputes between the brothers.

The relationship between the two brothers began to break down into disputes shortly after their mother’s death. These disputes led one of the brothers, Jonathon, to commence proceedings for relief under the Probate and Administration Act seeking orders that his brother, Stephen, be removed as an Executor of his mother’s Estate.

The disputes between the two brothers were about two matters:

Alleged loan advances made to Jonathon by the deceased and her late husband.

• Jewellery of the deceased that Jonathon claimed had been removed by Stephen after the deceased’s death and disposed of to Stephen’s daughter without accounting to the Estate for the jewellery.

During the court proceedings Stephen expressed that he was finally satisfied with Jonathon’s response in relation to the alleged loan advances and that he no longer believed Jonathon was indebted to the Estate for these loans. However, Stephen continued to contend that he had not removed jewellery from the Estate and that he had not failed to account for it. Finally, Stephen submitted that he would follow the Court’s directions on how the final distribution cheques for the Estate should be drawn and that he was agreeable to being removed as an Executor of the Estate.

The Court considered the legal principles that should be applied when considering the removal of an Executor, which centres around the due and proper administration of the Estate and the interests of the beneficiaries. The Court’s discretion to remove an Executor includes removal on the basis of gross misconduct or unjustified delay and ineffective co-operation among joint executors.

After considering all the evidence and the submissions made by the Executors, the Court found that there was little point in granting relief to remove Stephen as an Executor, as there were only a few steps remaining to complete the administration of the Estate. Removal of Stephen as an Executor would merely generate further expense for the Estate.

Disputes between Executors can have a detrimental effect on the administration of a deceased Estate by slowing down the distribution of the Estate to the beneficiaries. If you are an Executor in dispute with another Executor, you need to seek expert legal advice on the best and quickest way to resolve these disputes without commencing court proceedings to remove an Executor. Alternatively, if you are a beneficiary in a Will and disputes between the Executors is slowing down receiving your inheritance, you should seek expert legal advice on actions you can take to have the Estate finalised.

Contact us here.

A Deed of Variation is a legal document that changes the terms of a person’s Will after their death.

Why would you need a Deed of Variation?

There are several reasons why the beneficiaries of a Will may wish to change the terms of the Will.

1. To avoid a Will dispute

In all Australian States, it is possible for eligible people to challenge the terms of a Will. This is possible if they believe they have not been given adequate provision for their proper maintenance, education and advancement in life. These challenges to a Will are commonly referred to as “family provision claims” and they generally result in court proceedings.

If beneficiaries are aware that there is a family provision claim going to be made and that the claim will most likely be successful, then they can sign a Deed of Variation. This will change the terms of the Will. As a result, the person making the claim will receive adequate provision from the Estate. By doing this the beneficiaries can avoid potentially expensive and time-consuming court proceedings. It also helps the Estate be distributed as soon as possible.

2. A beneficiary is refusing the accept their inheritance

Another reason for a Deed of Variation could be if a beneficiary is refusing to accept their inheritance. This could be for a variety of reasons. For example, accepting the inheritance could produce a financial impact on their pension. Or perhaps there is a personal reason.

In this instance, a Deed of Variation can ensure that the inheritance is not gifted to that beneficiary.

How do you get a Deed of Variation?

A Deed of Variation is a legal document so it is important that you obtain expert legal advice on the Deed. This includes an expert lawyer drafting the Deed of Variation, to ensure that it is valid, binding and effective. To be valid, a Deed of Variation should be signed by the beneficiaries named in the Will, as well as the Executor named in the Will. This demonstrates that the terms of the Will are being changed by the mutual consent of all persons interested in the Estate.

Need a Deed of Variation?

Heckenberg Lawyers are experts in Estate Planning, Will Disputes, creating Wills, creating a Deed of Variation and more.

Contact us here for a chat (obligation-free).

To stop this happening, it is possible to lodge a Caveat with the Court which prohibits a Grant of Probate being made, until your Will Claim has been resolved. A Caveat on Probate cannot be made after a Court issued a Grant of Probate, so it is important to act quickly in lodging a Probate Caveat.

A Probate Caveat

Is generally used when you want to challenge the validity of the deceased’s Will for reasons including forgery, lack of testamentary capacity and undue influence. It will also be used when it appears that a Will, has not been properly executed.

Who can lodge a Probate Caveat?

Only certain people are entitled to lodge a Probate Caveat. To be eligible you must have a relevant interest in the deceased Estate or be an affected person in relation to the deceased Estate.

You need to get expert advice on whether you are eligible to lodge a Probate Caveat because, if the Court decides that you do not have a relevant interest, or are an affected person, you may have to pay the legal costs incurred by the Estate, as a result of the improperly lodged Probate Caveat. As these proceedings are run in the Supreme Court of New South Wales these costs can be quite high.

It is not possible to use a Probate Caveat if you wish to make a family provision claim on the deceased Estate. A family provision claim is a claim by an eligible person that the deceased did not make adequate provision for their care, maintenance and education.

What happens after lodging a Probate Caveat?

After lodging a Probate Caveat, you have six months from that date to challenge the validity of the Will.

What should I do if I want to lodge a Probate Caveat?

If you want to lodge a Probate Caveat you need to act quickly as a Probate Caveat cannot be granted once the Court has issued a Grant of Probate. You need to seek expert legal advice on whether you are an eligible person to lodge a Probate Caveat and the actions that need to be taken after lodgement of the Probate Caveat. These actions include preparation of the evidence required to be filed with the Court when you challenge the Will.

If you need advice on lodging a Probate Caveat to challenge the validity of a Will you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on how to successfully lodge a Probate Caveat that is accepted by the Court. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.

Call Graeme Heckenberg on 9221 2779 and ask about our “No Win No Fee” policy for Will claims.

“I was in a gay relationship and my partner died. We didn’t have Wills in place and had only been together for 18 months. Am I entitled to any of their possessions?”

You may be entitled to your partner’s possessions depending on the circumstances surrounding your relationship and whether your partner had any children.

In New South Wales, when a person dies without making a Will they are said to have died “Intestate”. If a person has died Intestate, then their possessions are distributed in accordance with the Intestacy Rules set out in the Succession Act.

Under the Intestacy Rules where a person dies leaving a ‘spouse’ but no children the spouse is entitled to the whole of the Estate of the deceased.

What is the definition of ‘spouse’ under the Succession Act?

The Succession Act defines a spouse to include:

• A person who was married to the deceased immediately before their death.
• Who was a party to a domestic partnership with the deceased immediately before their death.

What is a ‘domestic partnership’?

A domestic partnership is a relationship between the deceased and another person that is a registered relationship under the Registered Relationship Act, or a de facto relationship that has been in existence for a continuous period of 2 years or resulted in the birth of a child.

If you and your partner had registered your relationship under the Registered Relationship Act, then you are a spouse under the Succession Act and therefore entitled to receive the whole of your partner’s Estate in accordance with the Intestacy Laws.

To find out what you’re entitled to, you will need to speak with an expert Wills and Estates lawyer who can explain in detail the rights and entitlements you may have on your partner’s Estate.

These rights and entitlements will depend on the circumstances surrounding your relationship such as whether it was a registered relationship and whether your partner had any children. Our expert lawyers will also be able to advise you on whether you have any other avenues to explore such as entitlements to receive your partner’s superannuation and any potential claims you could make on your partner’s Estate.

Our lawyers keep up-to-date with the law and any changes to the law that affect same sex couples and have used this knowledge to assist numerous client’s receive their entitlements under the Succession Act.

Please contact us here to book an appointment.