While stories about wills disputes between new spouses and children from an earlier marriage abound, cases involving sibling rivalry are more vigorously fought, new research suggests.
In half of all the disputed wills in NSW the study examined, legal costs were disproportionately large, amounting to more than 25 per cent of the value of the estate.
Sometimes, fees exceeded 50 per cent of the estate and occasionally were greater than the amount in dispute.
Excessive or disproportionate legal fees were more common in cases involving siblings than in cases involving children and a new spouse, the research by Professor Prue Vines of the faculty of law at the University of New South Wales has found.
Professor Vines looked at 100 contested wills which went to hearing in the Supreme Courts of NSW and Victoria over at least three years.
Judges have long been critical of excessive costs, expert witnesses, and a waste of court time. They have been more willing to make costs orders against the parties following concerns the assumption that legal costs are born by the estate has contributed to ''any over-eagerness to sue litigation by would-be beneficiaries who feel that they carry little personal risk of paying the cost of the case'', Professor Vines says.
NSW used senior counsel, believed to contribute to higher costs, in 44per cent of all cases, more often than in Victoria.
Since mediation became mandatory in NSW in June 2009 its use has increased dramatically, but still lags behind Victoria. This is believed to also contribute to the greater likelihood of excessive fees.
''It may be that NSW ... still has some way to go before the culture of mediation becomes such that it really affects the level of litigation and therefore disproportionate costs,'' the report says.
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