Contesting a Will

Here is a fact sheet on costs from the Office of the Legal Services Commissioner:

The term costs generally refer to:

1. There is real estate property owned by the deceased situated in Queensland; and/or
2. The deceased was domiciled (living permanently) in Queensland at the date of his or her death and owned personal property anywhere.

Solicitors may sometimes talk about solicitor/client costs and party/party costs. Solicitor/client costs are the costs which a solicitor charges the client for legal services. Party/party costs are costs which the court orders another party to pay, or which another party has agreed to pay, as part of the terms of settlement of a court case.

In litigation it is usually the losing party who has to pay party/party costs … An order for party/party costs is very rare in family law matters, where each side usually pays their own costs.

How do party/party costs work?

Party/party costs are intended to reimburse one party, usually the successful party, for legal costs which they owe or have paid to their solicitor, where these costs have been determined as fair and reasonable. However, party/party costs normally provide only partial reimbursement of a client’s total legal costs. It is like the gap between a doctor’s actual charge and the amount paid by Medicare. A solicitor who charges a client more than the client receives from the other party is not necessarily overcharging.

If costs are awarded to you, you cannot claim from the other party more than you have paid (or have to pay) to your own solicitor.

In some cases, the maximum costs payable by the other party are fixed by legislation, most notably motor accidents claims under the NSW Motor Accident Scheme and personal injury claims.

How do I recover party/party costs?

Your solicitor will normally do this for you. The solicitors for each party might first try to agree on a figure for costs. The negotiations can take time, especially when an insurance company is involved. If the solicitors cannot agree on a figure, costs will normally have to be assessed by an independent costs assessor appointed by the Supreme Court of New South Wales. The costs assessor will determine what amount the paying party should pay. This process can take some months. A costs assessor’s determination can be registered as a judgment and enforced by a court.

If costs were awarded to me, can my solicitor deduct professional fees and disbursements from my verdict/settlement money?

If a client has signed an Authority to Receive, the solicitor will receive the verdict/settlement money and pay it into the client’s trust account. After sending the client a bill, the solicitor can hold in the trust account enough of the verdict/settlement money to cover their professional fees and disbursements. The solicitor then pays the balance to the client.

The money must remain in trust until the procedure laid down by the Legal Profession Regulation has been followed. This means that the solicitor must either:

a) have the client’s authority to deduct costs, or

b) give the client notice that they intend to deduct costs and may do so unless the client objects within seven (7) days after being given the bill.

If the client objects, the client has 12 months after being given the bill to put in an application for costs assessment. If the client has not done this, the solicitor can transfer the money from the trust account to pay their costs.

Any costs deducted should be at least partially reimbursed when party/party costs are paid by the other party.

Why should I have to pay anything if I have been awarded costs?

A costs order simply entitles the client to seek reimbursement (or usually only partial reimbursement) from another party for costs which the client has paid or has to pay. The client will still have to pay their own solicitor for work the solicitor has done.

A solicitor might agree to accept any party/party costs recovered from the other side as full payment for their services, but they are not obliged to do so. This will depend on the terms of the costs agreement, if any, between the solicitor and client. The client will normally have to pay the difference between the costs charged by the solicitor and the costs recovered from the other side.

Does my no win, no fee agreement with my solicitor mean that I will not have to pay any costs if I win my case?

A conditional costs agreement — also called a ‘no win, no fee’ agreement — is usually just an agreement between the solicitor and client to defer payment of costs until the successful conclusion of the legal matter. Once the matter is successfully concluded, the solicitor can seek payment of their costs and any disbursements, usually by deducting them from the verdict/settlement money. Any costs paid by the client, either up front or from money in trust, will normally be at least partially reimbursed when party/party costs are received from the other party. Remember, if you do not win you may still have to pay your solicitors disbursements and the other party’s costs. Accordingly, it is most important to carefully review the terms contained in a `no win no fee’ agreement. Make sure you clearly understand what constitutes a successful result.

The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J; Frey & Anor v Frey & Anor (as personal representatives of the estate of HE Frey, dec’d) & Anor [2009] QSC 43, at [148] … Hallen AsJ in Harkness v Harkness (No 2) [2012] NSWSC 35 at 108.

In Hatton v Hatton [2012] NSWSC 182 Associate Justice Macready outlined the child plaintiff’s circumstances as follows:

49. Michael is 64 years and lives with his partner Tammy. They have no dependent children. They live in the downstairs flat of the estate property at Allambie Heights. Michael owns a factory at Cromer, which is valued at $275,000 (T 35.10). He owns a car worth $17,000 and a bank account of some $45,000 (T 35.10). Michael has paid some of his legal costs but he still has some $87,200 to pay.

50. Michael’s partner, Tammy, has a car worth $8,000 and she has $4,400 in a bank account. She has modest superannuation of $26,500.

51. Michael’s wages from a business, which he owns, are $721 a week before tax. He has expenses of $770.64 plus the rent of $217.50 that he pays under the judgment, which totals $988.14. So there is a shortfall. However, Tammy has an income of $586 a week, which is substantially used for expenses.

52. Michael is in good health and continues to operate his business. He does have problems with his knees and he has been told that he will have to have two knee replacements. Fortunately he has private health insurance and he will only be out of pocket some $6,000. If both knees were operated on at the same time he would be required to take four months off work after the operation. If each knee were operated on at different times, he would require three months off work for each knee, totalling six months off work. He has not made a decision as to when he should have the knee replacements. Plainly if he had to cease work his business would no longer operate.

53. Michael had a good relationship with his parents and he was of great assistance to them during the last year of their lives. I will detail this assistance later when considering the basis of Michael’s claim for provision.

54. Michael was also provided with a gift of $10,000 from his parents to marry his present partner…

In Affoo v Public Trustee [2011] QSC 309 Dalton J said:

5. ….. Mr Blair’s family provision claim did not abate on his death: King v Condon [2009] 2 Qd R 143.

24. The final disposition of a family provision application calls for the exercise of the Court’s discretion, it cannot be achieved by agreement or deed: Lieberman v Morris (1944) 69 CLR 69; Smith v Smith (1986) 161 CLR 217, 235 and 249. The rule has its origins in the policy that a person cannot by contract exclude the jurisdiction of the Court to make a family provision order: Re Hatte [1943] St. R. Qd. 1, 13-14. When parties to a family provision application make an agreement as to the final orders they believe ought to be made in the proceeding, a court will have regard to that agreement as a factor, usually a significant factor, in deciding what order to make in the exercise of its discretion. Accordingly, whatever the terms of the agreement reached at mediation in this case, it could not dispose of the family provision application made by Mr Blair; an order of this Court was required to do that.

30. Consideration of an application for final orders in a family provision application, where the applicant has died before an order is made, must begin with Re Shannon (1935) 35 SR (NSW) 516.

“… The claimant having died before any order could be made, it is obvious that no provision could be properly made for her future maintenance, education or advancement; nor do I think that in a case where the claimant has died after having in fact maintained himself or herself without running into debt, even though on a scale less generous than he or she was entitled to require or expect, the Court ought to make an order after the claimant’s death which would merely have the effect of swelling the estate which would pass under the claimant’s will, or to his or her next-of-kin if intestate, and of benefiting persons who are not within the scope of the Act. In the present case, however, the evidence establishes that the widow died indebted in respect of board and residence to the extent of £23.8s.9d; and … I think that an order should be made to that extent, notwithstanding that indirectly her legatee may be benefited to that extent.”

31. This decision was followed in Re Wardle (1979) 22 SASR 139, Read v Nicholls [2004] VSC 66 and in Groser v Equity Trustees Ltd (2008) 19 VR 593. The principles were accepted by Jones J in Underwood v Underwood [2009] QSC 107 [27]. The most recent case to consider whether or not orders should be made in a family provision application in terms of an agreement to settle after one of the interested parties had died, is McKenzie v Lucas [2010] NSWSC 1083. There Bryson AJ described the death of the interested party as “a radical alteration in the relevant circumstances” and refused to make an order in terms of the agreement.

32. The evidence here establishes that after his wife’s death Mr Blair maintained himself without running into debt. He did sell some assets to enable this to happen. However, he also gave away substantial assets. There was no evidence of debts incurred because Mr Blair did not have access to the benefit he was to receive under the agreement made at mediation. The case falls squarely within the principle first enunciated in Re Shannon, and followed in the subsequent cases mentioned above. Accordingly, it is not appropriate for this Court to make orders disposing of this proceeding in terms of the agreement reached at mediation. I dismiss the proceeding.

Glesson CJ in Vogolo v Bostin [2005] HCA 11 said at 13:

When courts came to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall. In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate). It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives.

Mason J in White v Barron (1980) 144 CLR 431 said at 445:

A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy.

In Nelligan v Crouch [2007] NSWSC 840 Associate Justice MacReady said at 49:

In Benny v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them.

Yes. In Gorton v Parks (1989) 17 NSWLR 1 at 7 Bryson J said:

[A]n idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation.

Macready AsJ in Ford v Simes [2008] NSWSC 1120 said at 28:

Pursuant to s4 of the Felons (Civil Proceedings) Act 1981, a person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

In Hastings v Hastings [2008] NSWSC 1310 (9 December 2008) White J said at 40:

A criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (17 February 1987, Young J, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote.

In Ball v Newey (1988) 13 NSWLR 489 Samuels J at p 490 said:

‘Dependent’, in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. in Lee v Munro (1928) LJKB 49 AT 53; 21 BWCC 401 at 408, that in ‘deciding whether or not there is dependency the factors to be considered are past events and future probabilities’. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency.

In Ball v Newey (1988) 13 NSWLR 489 Samuels J at p 490 said:

New South Wales is the only Australian jurisdiction where the legislation specifically provides a power to make interim orders: section 62 of the Succession Act 2006 (NSW).

In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 115, said, of the words ‘maintenance’, ‘support’ and ‘advancement’:

‘Maintenance’ may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. ‘Support’ similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote advancement’ would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.

Yes. In Faulkner v McLeod [2011] NSWSC 92 at [79] Hallen AsJ said:

It must not be forgotten that the Defendant is the administrator of the deceased’s estate and was duty bound to provide to the court, and to the Plaintiff, precise details of the nature and value of the deceased’s estate at the date of death and at the hearing: Fiorentini v O’Neill [1998] NSWCA 79. That obligation would include, in this case, how cash held by the deceased had been spent by the Defendant before the hearing of the proceedings.

Hallen AsJ said in Popovski v Kenjar; Hafizovic & Anor v Kenjar [2011] NSWSC 731 at 27:

In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should be considered, since each of the Plaintiffs, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate.

In Re Hatte [1943] St R Qd 1, at 26, Philp J said:

I do not think that the Legislature intended that provision under the Act should be given rather to those who are efficient and successful than to those who are not. A just father’s moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving.

and in Killiner v Freeman [2000] NSWSC 263 at 51-52 per Master Macready said:

[The plaintiff] presented as a pathetic creature, who, despite the financial benefits which he has received from his father and despite the various incidents of unfilial conduct of which he was clearly guilty, appeared, both medically and emotionally, to be one of life’s losers . It is for just such a person that the exercise of the discretion of the Court should be available. It should be emphasised that an order for provision is not made as a reward for good conduct; neither is such an order (if otherwise justified) withheld as a punishment for bad conduct.

In Yeomans v Yeomans & Anor (No 2 ) [2011] QSC 415 Mullins J stated at 9:

Despite the fact that there is a fund in the form of the estate which is available for the making of costs orders in most family provision applications, the behaviour of the parties in the conduct of the litigation remains a relevant consideration in determining the issue of costs. In the reasons, I made observations about the conduct of both parties to this litigation. Parties to a family provision application remain amenable to the court’s exercise of discretion in relation to the making of costs orders, despite what is considered to be the “usual” costs order for a successful applicant in a family provision application.

In its simplest form, the doctrine of proprietary estoppel is conveniently described in the following terms by Handley JA in Delaforce v Simpson-Cook [2010] NSWCA 84 at 21:

[Proprietary] estoppel comes into existence when an owner of property has encouraged to another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part.

In Re Beddoe (1893) 1 Ch 547 Lindley LJ explained at 557:

… a trustee who, without the sanction of the Court, commences an action or defends an action unsuccessfully, does so at his own risk as regards costs, even if he acts on counsel’s opinion; and when the trustee seeks to obtain such costs out of his trust estate, he ought not to be allowed to charge them against his cestui que trust unless under very exceptional circumstances. If indeed the judge comes to the conclusion that he would have authorised the action or defence had he been applied to, he might, in the exercise of his discretion, allow the costs incurred by the trustee out of the estate…

In Jackson v Riley (unreported, 3701/1987, 24 February 1989, BC8902497) Cohen J said:

In my opinion the legal profession in both branches has an obligation to reduce the costs of litigation as much as possible when the amounts in dispute are so small. If the parties cannot reach a compromise then it seems to me that by consultation their legal advisers, both solicitors and counsel, should seek to find all means of defining the real issues and confining the evidence in relation to them. Where cross-examination will be unlikely to alter the substance of a witnesses’ evidence it should be dispensed with. The heavy expense of bringing those witnesses from distant places should be actively avoided… it requires everyone in all cases to look somewhat further than [fighting for one’s client’s interests] and to look at what the final issue will be. Because everybody has stood by their respective clients so well there is practically nothing to be argued about. The plaintiff and the principal beneficiary will have to bear the heavy expense of the litigation with little left for them at the end. It is most regrettable and I think it shows up the need for early consultation and early advice to clients as to what at the end they will be facing.

In Graziani v Graziani (Unreported, Supreme Court of New South Wales Equity Division, Cohen J, Eq 2678 of 1985, 20 February 1987) Cohen J said:

[T]hat in the case of an applicant who was a step-child of the deceased the factors which the Court should consider include the closeness of the relationship, that is whether it is one which might properly be described as parent and child, whether the applicant was brought up as a permanent member of the family, the age of the applicant when he or she became a member of that family, and the extent to which the applicant was supported by the deceased, whether it be financially, educationally or emotionally.

Kirby P in Golosky v Golosky [1993] NSWCA 111 said at 17-18:

17. … No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies.

18. A mere right of residence will usually be an unsatisfactory method of providing for a spouse’s accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence the spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just.

Ormiston J said in Collicoat and Ors v McMillan and Anor [1999] 3 VR 803 at 43:

In my opinion the expression “moral claim” has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That “moral obligation”, as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards. What is right and proper, and thus what the wise and just testator must do, is not determined by the “character and conduct” of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.

Taking a practical example, a testator is obliged by reason of the legislation to make greater provision for a daughter who has spent many years at home with the testator than for a daughter who has left home early and thereafter for no good reason has had little or no contact with their parent …. Even in the case of conduct disentitling the alleged behaviour must be looked at from the viewpoint of the testator and the test has been stated as requiring proof of defects in character or conduct of such a nature “as would ordinarily move a just spouse or father to take them into consideration when making his testamentary disposition”: see Wenn v Howard [1967] V.R. 91 at 95.

In Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437 (8 May 2006) White J made the following judgment at 66-69:

66. I consider that, having regard to the competing claims and the small size of the estate, the pecuniary legacy should be modest. I accept that the plaintiff has a need for a provision which will provide a fund which, when invested, will be adequate to pay rent on a one bedroom apartment in the region of Sydney near to where her daughters live for the rest of her life. Counsel for the plaintiff correctly submitted that a provision of half of the net distributable estate would be needed for this purpose.

67. However, the estate is not large enough to meet all of the parties’ financial needs. I do not consider that the matrimonial bond, or the services provided by the plaintiff and her financial contributions, when judged against the competing claims of the deceased’s children, warrant a provision of that order. The Act requires the making of an holistic value judgment based on matters of a very general kind, (cf. Davey v Lee (1990) 13 Fam LR 688 at 689) ….. Therefore the Court must select a figure which it considers appropriate in the circumstances, but it is impossible to justify one figure rather than another. No doubt the pursuit for individualised justice based on uncertain or indeterminate criteria, which the Act requires, produces results which are arbitrary and will therefore appear unjust to the parties. However, that is inevitable.

68. I consider that the provision which ought to be made for the plaintiff’s maintenance, having regard to the competing needs and claims of the deceased’s children, is an amount of $62,000, representing 20 per cent of the likely net distributable estate.

69. The parties have incurred more than $75,000 in legal costs to achieve that result. That cannot be regarded with equanimity. But I cannot blame the parties for spending money on legal costs when there are no certain criteria by which they can assess what the result of the case will be.

In Sherborne Estate: Vanvalen and Anor v Neaves & Anor [2005] NSWSC 593 Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said:

[T]he grandchild’s dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild’s dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator’s grandchildren who are directly dependent on the child: see eg Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fullop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799; MacEwan Shaw v Shaw (above).

Further, the fact that the testator occasionally or even frequently made gifts to or for the benefit of the grandchild does not in itself make the grandchild wholly or partially dependent on the testator. To qualify the grandchild as a dependant, the gifts or benefits provided by the testator must be of such regularity and significance that one can say that the testator had clearly assumed a continuing and substantial responsibility for the grandchild’s support and welfare: see eg Leahey v Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (above); Pearson v Jones (above); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223.

It was said in Diver v Neal [2009] NSWCA 54 at 34 that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

In Nicholls v Hall [2007] NSWSC 356 the court said at 43:

There are some statements in the cases that could be understood as meaning that, if there is nothing more than “bare paternity” in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance.

Yes. Section 97 of the Succession Act 2006 (NSW) provides “The Court may, if the date or time of death of a person is uncertain, determine …. a date or time of death that the Court thinks is reasonable for the purposes of the provision”.

Section 95(4) of the Succession Act 2006 (NSW) states:

4. In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether:

• a) It is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and
• b) It is or was, at that time, prudent for the releasing party to make the release, and
• c) The provisions of any agreement to make the release are or were, at that time, fair and reasonable, and
• d) The releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.

A release states that a person may release any rights he or she may have to bring an application under family provision legislation. Section 95 of the Succession Act 2006 (NSW) states:

4. In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether:

• 1) A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court.
• 2) Proceedings for the approval by the Court of a release of a person’s rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order.
• 3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person.

In Walker v Walker (unreported 17 May 1996) (p 27) Young J noted:

It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant.

Conduct that goes against the applicant. For example in Adams v Adams [2001] NSWSC 456 Master Macready said at 50-53:

50. In the present case Debbie [one of the plaintiffs] took the step of deciding to cut off any contact with her mother. I am prepared to assume for these purposes that there was some ill-treatment of Debbie by the deceased, but even so she clearly had an opportunity to start a new life and thus did. It may ultimately have been very wise for her to do so – but the fact of the matter is she then made the decision to no longer have anything further to do with her mother. She knew where she lived and she decided that she would never ever contact her again.

51. She is 42. She has lived some 24 years away from her mother. She admits she made no attempt and had no wish to ever contact her mother again.

52. …. In those circumstances I find it hard to see why there should be some provision for her. She seemed to me in the witness box to be a sensible person. She seems to have made a reasonable success of her life and I would have thought she would have been mature enough to have realised as she got older, that perhaps some approach to her mother might have been warranted as her mother reached her elderly years.

53. For these reasons I do not think it is appropriate to make some provision for Debbie.

In answering this question Young CJ in Fung v Ye [2007] NSWCA 115 said at 30:

Whilst it is true fact that a non-marriage relationship is a relationship which depends on the facts rather than on a matter of legal status, and if the state of facts ceases the relationship ceases, the cases show that one needs to be practical about the question of whether a relationship has ceased. Cases like Hibberson v George (1989) 12 Fam LR 725 (NSWCA) show that mere temporary absence does not necessarily mean that a relationship based on fact has come to an end. One must look at all the facts and circumstances and where one sees that when one party is in hospital, the other party is attendant on them and is voluntarily doing chores or taking commissions, then one can readily conclude that the relationship is continuing. It is a common experience for people whose friends and relations are in hospital to volunteer to handle the patient’s laundry needs etc. and where this happens in the case of a person in a domestic relationship, that is fairly good evidence that the relationship is continuing even though the parties may fear that the patient has a terminal illness.

Section 5(1) of the Property Relationships) Act 1984 (NSW) defines a domestic relationship as:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

Yes. In Ye v Fung (2006) NSWSC 243 Gzell J said at 56:

The new definition of a de facto relationship in the Property (Relationships) Act 1984, section 4 clearly encompasses homosexual partners. That was its purpose. The Property (Relationships) Legislation Amendment Bill 1999 was introduced in the Legislative Council. In his second reading speech, the Attorney General said (New South Wales Parliamentary Debates (Hansard), 13 May 1999, at 228-229):

The Property (Relationships) Legislation Amendment Bill recognises that contemporary society has developed to a point where laws that regulate the division of property on the failure of a broad range of intimate relationships are necessary and desirable. Presently, persons living in intimate partnerships but who are not married or covered by the existing De Facto Relationships Act have limited rights to a share of the property of the partnership in the event that it fails or one partner dies.

Having discussed the extension of the legislation to domestic relationships the Attorney continued:

A de facto relationship is redefined as being a relationship between two adult persons who live together as a couple and who are not married to one another or related by family. This redefinition of de facto relationship is designed to be clearly inclusive of those living together as homosexual couples.

No. In Edgar v Public Trustee for the Northern Territory & Anor [2011] NTSC 5 at 46 the court said:

There is no onus on the widow as residuary beneficiary under the will to show that she is entitled to be treated as such – or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle.

In Barlevy v Nadolski; Nadolski v Barlevy [2011] NSWSC 129 Slattery J said at 25:

In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, e.g. shopping for both parties, washing clothes etc.

In House v The King (1936) 55 CLR 499 at 504 it was said:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

In Barlevy v Nadolski; Nadolski v Barlevy [2011] NSWSC 129 Slattery J said at 25:

In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, e.g. shopping for both parties, washing clothes etc.

In House v The King (1936) 55 CLR 499 at 504 it was said:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

In Peter Robert Durham v Bruce Albert Durham & Ors [2011] NSWCA 62 Tobias JA said at 65-66:

65. An appeal to the Court of Appeal from the Equity Division in an application under the Family Provision Act is made under s 75A Supreme Court Act 1970. Such an appeal is by way of rehearing. Notwithstanding its name, an appeal by way of rehearing does not involve the appellate court in considering the matter completely afresh … Rather, the subject matter of an appeal by way of rehearing is the decision appealed from. On an appeal by way of rehearing, the Court of Appeal can intervene if ” … making proper allowance for the advantages of the trial judge, they conclude that an error has been shown …” : Fox v Percy (2003) 214 CLR 118 at [27], 127-128.

66. There can sometimes be an error capable of being corrected on an appeal under s 75A when the error has caused the trial not to be conducted according to law, or arises from the judge failing to carry out the duties of a judge, such as by a failure to give adequate reasons.

Palmer J in Sherborne Estate (No 2): Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor [2005] NSWSC 1003 said at 29-30:

[Cost capping orders] …. were designed to put into the Court’s hands a break on intemperate and disproportionately expensive conduct of proceedings. The power conferred by the Rule is not brought into play only if one of the parties invokes it: The Court itself may exercise the power on its own motion whenever it sees the need. This is because the policy of the law …. is to facilitate the just, quick and cheap resolution of the real issues in proceedings. [T]he Court not only may, but must, give effect to that policy whenever it exercises any power conferred upon it by the Act or the Rules – indeed, even when the parties themselves do not wish to conduct the proceedings quickly or cheaply.

Proportionality of costs to the value of the result is central to the just and efficient conduct of civil proceedings… It is a pity that the precursor of UCPR 42.4 seems never to have been used to this end ….. In my opinion the Court should not be reluctant to use UCPR 42.4 to prevent extravagant expenditure of legal costs in FPA cases …. The time for its use is early in case management, whenever it appears that the parties’ litigious fervour may be leading them to excessive expenditure of costs.

Rule 42.4 of the Uniform Civil Procedure Rules 2005 (NSW) provides “The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.”

In McGrath v Eves [2005] NSWSC 1006 Gzell J said at 67-68:

67. When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (19890 17 NSWLR 1 AT 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.

68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one.

In Ritter v Godfrey [1920] 2 KB 47 at 60, Atkin LJ said:

In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.

In McCusker v Rutter [2010] NSWCA 318 Young JA said at 29:

The general rule is that there is no power in the court to make a successful defendant pay the costs of an unsuccessful plaintiff. The reason is obvious: it is the plaintiff who brings the defendant into court.

In Churton v Christian (1988) 13 NSWLR 241, his Honour Priestley JA said the following, in respect of this type of application:

It is common experience that divorce sometimes brings to an end all links between previously married people. In such cases, warranting factors might well be expected usually to be absent, although this need not be universally so. On the other hand, divorced persons may remain on close terms, sometimes little different from those on which they lived when married. In every case it is necessary to examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of divorce.

Section 65 of the Succession Act 2006 (NSW) deals with the nature of family provision orders.

Here a family provision order must specify:

• a) The person or persons for whom provision is to be made, and
• b) The amount and nature of the provision, and
• c) The manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
• d) Any conditions, restrictions or limitations imposed by the Court.

Bryson J said in Gorton v Parks (1989) 17 NSWLR 1 at paragraph 6:

[T]hat it is not appropriate, to endeavour to achieve a ‘fair’ disposition of the deceased’s estate. It is not part of the court’s role to achieve some kind of equity between the various claimants. The court’s role is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity. Rather, the court’s role is of a specific type and goes no further than the making of ‘adequate’ provision in all the circumstances for the ‘proper’ maintenance, education and advancement in life of an applicant.

In Cropley v Cropley [2002] NSWSC 349 Barrett J said at 56:

When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow’s claim to maintenance out of the estate of her deceased husband is a claim which is “paramount” and “of a high order” is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring).

However Ipp JA in Bladwell v Davis & Anor [2004] NSWCA 170 at 1 said:

[I]t would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201…’ I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.

No. In Varnel v Heyes [2008] NSWSC 978 the plaintiff was a de facto partner of deceased for eight and a half years, made no contribution to the estate and had a large Centrelink debt.

Macready AsJ said at 2, 46-48:

2. The deceased’s last will was dated 23 December 2002 probate of which was granted to the defendant on 1 May 2007. Under that that will he gave the plaintiff a legacy of $50,000. The residue of his estate was left to the defendant, his son, who he appointed executor.

46. The deceased had assured the plaintiff that after he died she would always have a roof over her head and perhaps he thought the legacy would enable her to have rented accommodation. As I have mentioned her estimated expenses, which do not include rent, presently exceed her pension income.

47. It seems to me that an additional award of $100,000 upon trust to be applied to supplement her expenses to rent premises or provide for other accommodation would be of assistance. It would not be her property which could be used to repay her Centrelink debt and the amount would not greatly affect her pension.

48. Such provision would be for the plaintiff’s future benefit and would not be contrary to public policy. She will still be required to pay for her misdeeds by reduction of her pension.

Campbell J in Grisonic v Suttor [2004] NSWSC 137; (2004) 12 BPR 22,797 said:

Concerning other statutes where courts have a power to change the property rights of parties, it is recognized that the court can grant an interlocutory injunction to protect the subject matter of the suit. When a claim is made under the Family Provision Act 1982 the Court has power to grant an interlocutory injunction requiring property that might be the subject of an order to not be disposed of until the suit is heard. This is a particular example of the Court’s jurisdiction to preserve the subject matter of a suit pending the hearing: In the Estate of Gough, Deceased; Gough v Fletcher (1973) 5 SASR 559.

No. In Williamson v Williamson [2011] NSWSC 228 it was said by Hallen AJS at 67 said “There is no obligation upon the deceased to have treated all of his, or her, children equally”.

His Honour Associate Justice McLaughlin’s judgment in Strano v Jovsevski [2008] NSWSC 380, said at 65 and 66:

65. In Thomas v Jackson [2002] NSWSC 660 (26 July 2002), Master Macready (as he then was) said, at [31] that the amount which might otherwise be given to the applicant in that case should not be given to him, since any order for that amount will not be for the benefit of the Plaintiff, as it will pass to his creditors, the amount of whose claims are likely to exceed the amount of any appropriate award.

66. I am in agreement that the Courts do not order provision if it is merely to go to the applicant’s creditors in respect of unrelated matters. Such a payment would not operate as provision for the Plaintiff’s maintenance or advancement in life (see Caska v Caska [1999] NSWSC 289, 1 April 1999; Driver v Neal [2008] NSWSC 304, 7 April 2008).

In Luciano v Rosenblum (1985) 2 NSWLR 65 Powel J said, as a broad general rule:

Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result;

first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home;

secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and,

third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring.

In Andrew v Andrew [2011] NSWSC 115, at [73] – [74] Hallen AsJ stated “There is no rule that irrespective of a Plaintiff’s need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to “ample” provision if he, or she, has been estranged from the deceased”.

In Worladge v Doddright (1957) 97 CLR 1 at 12, Williams and Fullagar JJ said:

Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door – it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard – it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail.

Prior to 1 March 2008 if the spouse witnessed the will there could be an argument about whether a gift would be valid. If that has occurred the best thing to do is to have the will signed again in front of two new witnesses or phone us for some advice on just how the will was witnessed. If witnessed after 1 March 2008 the spouse can witness the will.

If the family member is alive you are only entitled to see the will if he or she allows you to see the will. If the family member has passed away you may be entitled to get a copy from the Probate office…depending upon the kind of “family member” you are. Children, spouses and others named in the will or previous wills would be entitled to a copy.

You are entitled to a copy of the will. Section 54 of the Succession Act 2006 (NSW) says among other things that the person who has the possession or control of a will (the solicitor in this case) must allow certain persons to have a copy of the will. A child is one of those persons.

You may have been entitled to make a claim at the time however you have to make a claim within 18 months of your father’s death (as the law was at that time). For the court to allow you to commence proceedings out of time you must show special reasons as to why you did not claim within time and many other questions need to be answered. You should give one of our solicitors a call to discuss whether we think you would be allowed to claim out of time.

You can contact the Probate Division of the Supreme Court and for a fee you can obtain a copy of your grandmothers will and probate.

Yes sometimes we do. However the usual practice for us is to enter into an agreement with a defendant on the basis that if there are no funds available from the estate at the time of the proceedings we act on the condition we are paid at the end.

The answer is in the Supreme Court PRACTICE NOTE SC Eq 7 – Family Provision.

You can make an application to the Supreme Court Probate Division and for a fee obtain a copy of Probate including the will. Remember if you want to contest a will there are strict time limits. Ask your solicitor because every case is different.

Details of your family tree, your assets and liabilities, your income and expense and what you want to achieve in your will. After a first interview we will ask you for more information. Be sure to ask the solicitor about the law relating to contesting a Will.

Yes, it’s probably too late to contest a will after that time. You would need to show the courts you have a reason for commencing proceedings after the period of 18 months from the date of death. These cases can be complicated and full details are required by the court as to the cause for the delay.

Legal costs and disbursements is a general term usually including solicitors fees, barristers fees court filing fees telephone, fax, postage, photocopying, service fees and any other costs associated with proceeding both in and out of court. There is a difference in fees when contesting a will compared to challenging a will. When challenging a will (the validity of a will) usually the loser pays. However when it comes to contesting a will (family provision cases) the court has a discretion as to how the fees are paid.

The answer lies in the case of Foley v Ellis [2008] NSWCA 288, the Family Provision Act 1982 and the Succession Act 2006.

Sackville AJA said in Foley v Ellis:

88. This language strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.”

89. The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231):

“Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances.The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.”

[I]n Palmer v Dolman [2005] NSWCA 361, Ipp JA held (at [115]) that the circumstances to be taken into account in that case included the fact that none of the beneficiaries nominated in the deceased’s will (other than the applicant and one other beneficiary) “had any claim on [the testator’s] bounty or demonstrated need”.

Family Provision Act – section 9(3)

In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

• a) Any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:
  • i) The acquisition, conservation or improvement of property of the deceased person, or
  • ii) The welfare of the deceased person, including a contribution as a homemaker,
• b) The character and conduct of the eligible person before and after the death of the deceased person,
• c) Circumstances existing before and after the death of the deceased person, and
• d) Any other matter which it considers relevant in the circumstances.

Succession Act – section 60(2)(d):

The financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate.

Comparison between the old and new Acts

Hallen AsJ made this point about the difference between the old Act and the new Act in Hulme v Graham [2010] NSWSC 1281. He said at 57:

Section 60 of the Act, at least in part, is new. Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased’s will.