The Tide is Turning: Family Provision Claims & Rising cost Concerns in NSW Estates
For decades, family provision claims - applications to a court for a share of a deceased estate – operated under a certain assumption: costs would largely be borne by the estate itself. That era is demonstrably ending. Recent rulings in New South Wales (NSW) courts signal a important shift, placing greater financial duty on unsuccessful applicants and demanding a more rigorous assessment of claim merit.
As a principal at M de mestre Lawyers and a lecturer in succession law at Macquarie University, I’ve observed this evolution firsthand. The increasing volume of claims, coupled with concerns about estates being depleted by litigation, is driving a new approach to cost orders and claim viability.
A Recent Case Highlights the Shift
A recent NSW Supreme Court case perfectly illustrates this change. The judge ruled against a daughter’s claim, stating the estate’s size and existing commitments meant assets weren’t “available.” Crucially, the court also acknowledged the daughter wouldn’t be left destitute without further provision.
Despite these considerations, the daughter was ordered to pay 70% of the executor’s legal costs – exceeding $120,000 – with the remainder drawn from the estate. This decision underscores a critical point: financial disadvantage will not automatically shield an unsuccessful applicant from contributing to legal costs.
Key takeaways from the Ruling & Broader trends
This case, and others like it, reveal several vital developments in NSW family provision law:
* Cost Splitting is Now Common: Courts are increasingly willing to order a portion of costs to be paid by the applicant from their potential entitlement, and the balance by the estate.
* Merit Matters More than Ever: Speculative claims, fueled by the expectation of estate-funded litigation, are being scrutinized. Courts now prioritize applications grounded in genuine financial need and a demonstrable moral obligation from the deceased.
* The ”Open Slather” Era is Over: NSW judges are actively signaling a cultural shift away from allowing estates to be endlessly drained by litigation.
* Increased Claim Volume: The number of family provision applications filed in the NSW supreme Court has risen dramatically – from 655 in 2005 to 996 last year. This surge is driven by factors like blended families, increased awareness of rights, and economic pressures.
Why the Change? Protecting Estates from Being “Devoured”
The escalating number of claims is placing a significant burden on estates, particularly those under $1 million. Courts are acutely aware of the risk of litigation costs exceeding the value of the estate itself, effectively negating the intended beneficiaries’ inheritance.
This concern is prompting proactive measures:
* Early Mediation is Encouraged: Courts are now actively encouraging or directing parties to engage in mediation early in the process to facilitate resolution before costly trials.
* Cost Capping: Courts possess the power to cap legal costs recoverable from the estate or the opposing side, ensuring expenditure remains proportionate to the estate’s size.
* Focus on Proportionality: The overarching goal is to incentivize parties to manage legal expenses responsibly.
What This Means for Claimants & Executors
For potential claimants: Before initiating a family provision claim, a realistic assessment of its merits and potential costs is crucial. Seeking expert legal advice before filing is no longer optional - it’s essential. Understand that you may be personally liable for a significant portion of the legal fees if your claim is unsuccessful.
For executors: Be prepared to actively manage litigation costs and explore early settlement options. Documenting the estate’s financial position and the deceased’s intentions is vital. Don’t hesitate to seek legal counsel to navigate these increasingly complex proceedings.
The Future of Family Provision Litigation in NSW
The trend towards greater cost accountability and a focus on merit-based claims is likely to continue. The NSW courts are sending a clear message: family provision litigation should be reserved for genuine cases of need, not speculative attempts to secure an inheritance.
This shift ultimately aims to strike a fairer balance, protecting the integrity of the estate and ensuring that legitimate claims are addressed responsibly and efficiently.
Disclaimer: This article provides general information only and does not constitute legal advice. You should consult with a qualified legal professional for advice tailored to your specific circumstances.
