For many people, the fear of an open-ended legal bill is the single biggest thing stopping them from contesting a will — even when they have a genuinely strong claim. The good news is that cost allocation in estate litigation isn’t as unpredictable as it might seem. Here’s how it typically works.

The General Rule: Costs Follow the Event

In most civil litigation, the losing party can be ordered to contribute to the winning party’s legal costs — but will disputes work a little differently in practice, because courts have broad discretion, and estate litigation carries its own conventions that don’t always mirror standard commercial disputes.

When the Estate Pays

• In many family provision claims, a claimant’s legal costs — and sometimes the costs of all parties — are paid out of the estate itself, particularly where the claim was reasonably brought and helped clarify a genuine ambiguity or dispute
• Executors defending a claim in their capacity as executor (rather than personally) often have their reasonable legal costs paid from the estate as a matter of course, since defending the will is part of their duty
• Where a case settles through negotiation or mediation, cost arrangements are often agreed as part of the settlement itself, which can include a contribution from the estate

When You Might Pay Your Own Costs

• If a claim is found to be weak, unreasonable, or brought without proper grounds, a court may decline to order costs from the estate, leaving the claimant to cover their own fees
• If you reject a reasonable settlement offer and the eventual result isn’t meaningfully better than what was offered, this can affect a costs decision against you
• Costs orders are always at the court’s discretion, so a costs outcome isn’t guaranteed even for a claim that ultimately succeeds

Why an Early, Honest Assessment Matters

Because cost outcomes are tied to the strength and reasonableness of a claim, understanding your realistic prospects before you commit is one of the most effective ways to protect yourself financially. Our guide on your chances of successfully contesting a will in NZ is a useful starting point, and our broader guide on how much it costs to contest a will covers what actually drives the size of the bill in the first place.

Reducing Your Financial Risk

• Get a clear, honest assessment of your claim’s strength before committing to significant legal spend
• Confirm you have standing to bring the claim — our guide on who can contest a will covers this
• Where possible, pursue negotiation or mediation before a defended hearing, since costs are often addressed more flexibly through settlement
• Ask your lawyer directly, early on, how costs are likely to be treated in your specific situation rather than assuming a general rule applies

How Agile Legal Can Help

We give clients a transparent, upfront view of both the merits of a claim and the realistic cost picture — including how costs are likely to be treated — before any significant spend is committed, as part of our will contest and estate litigation services. If you’re still confirming eligibility, start with who can contest a will, or explore the specific grounds for contesting a will in New Zealand.

Book a confidential consultation for a clear picture of your likely costs and cost recovery prospects.

This article provides general information only and does not constitute legal advice or a guarantee of any costs outcome. Every claim depends on its specific facts — speak with a lawyer about your circumstances.