Section Part 4 of the Succession Act 1981 (Qld) allows for spouses, children or dependents to challenge the Will of a deceased person on the premise that insufficient provision has been made for their proper maintenance and support. A significant issue that has arisen as a result of such claims is the outcome of costs of the litigation and the question of which party should bear the obligation of paying the costs of the claim.
The usual outcome in terms of costs in civil proceedings is that pursuant to r681 of the Uniform Civil Procedure Rules 1999 (Qld) costs follow the event. Therefore, it stands that in most civil matters the unsuccessful party will be required to pay the costs of the other party. Family provision claims however, deviate from this principle. As it was stated in Singer v Berghouse (1993) 114 ALR 521, ‘family provision cases stand apart from cases in which costs follow the event…costs in family provision cases generally depend on the overall justice of the case’. In deciding the outcome of a family provision claim, the court has a wide discretion and the final outcome may differ between judges. For this reason, it is often difficult for legal practitioners to provide accurate advice in relation to the awarding costs in family provision claims.
In making their decision, the court will take into consideration a number of issues to gauge the overall justice of the outcome. These considerations may include; the financial effect that a particular costs order may have on the party, the reasonableness of the claim and the conduct of the parties.
An example of the court taking into consideration the conduct of the parties was in Yeomans v Yeomans  QSC 344, in this case the applicant was the long term de facto partner of the deceased. The applicant was successful in being awarded a provision of $50,000, however despite being successful in the claim, the court took into consideration the conduct of the applicant and held that the applicant had made an unreasonable settlement offer that was not advantageous towards reaching a settlement. Further to this, the applicant had not been forthcoming in disclosing a prior payment. Unreasonable conduct of the parties was stated in Underwood v Underwood  QSC 107 to diminish ‘the value of the estate’. It was held that due to the unreasonable conduct of the applicant, costs were only to be awarded for the applicant on the standard basis, not on an indemnity basis.
In contrast, where there is an unsuccessful claim, the Full Court of South Australia stated in Bower v Wood  SASC 327 that the general principle that applies is that no costs order will be made. The Court’s discretion remains however, and may still order costs based upon the reasonableness of the application; being that costs may be awarded in favour of the applicant for a reasonable application or for an unreasonable with little prospects of success, the applicant may be ordered to pay costs.
Due to the uncertain nature of both the outcome of the claim and potential costs orders, it is important that realistic estimates of costs and a range of potential outcomes are conveyed to claimants and that these advices are reassessed as the matter progresses. It is also important to attempt to reduce costs and delay by attempting to come to an early resolution and making compromises, as failing to do so may result in an adverse costs outcome.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000