Costs in Will contests and the changing attitude of the Court

It has been said that costs have become an increasing problem in Wills and estate litigation, Mr Greg Smith MLA told the NSW parliament in 2008: [1]

 “Not only Justice Young has complained, but also the Chief Justice, Jim Spigelman, has complained. In an article in the Australian by Chris Meritt on 26 March 2007 lawyers were warned about excessive costs. Justice Spigelman gave a speech at the Australian Legal Convention in Sydney, at which Chris Meritt said that the profession may be alarmed, but in a sense he echoed what had been said the previous day by the Chief Justice of the High Court, Murray Gleeson, who recently retired. Justice Gleeson told the conference that litigation is a perfect example of Parkinson’s law—work expands to fill the available time. Unfortunately, some lawyers have used the time-based charging system to accumulate large costs. In the old days when I was in private practice as a solicitor there were ways of costing that may not be covered by any law book. Some lawyers said that they put the file under their arm to determine how thick it was and others would throw the file up in the air and wait to hear the noise it made when it landed on the ground—that may trivialise the practice. I know that others charge by the number of letters sent. The time-based costing system using units of six minutes that was introduced has created or helped to create this situation. The profession of law is not meant to be a mechanical thing where you charge for every minute of the day. Discretion must be used, and most lawyers use that discretion and charge a fair amount.”

As a result the courts are more readily adopting a position that costs are to be paid by the losing party rather than both parties’ costs being met from the estate.[2] According to The Hon. John Hatzistergos: [3]

“The majority of lawyers work hard to achieve a fair outcome for their clients. There is, however, a minority of practitioners who exploit the highly emotionally charged nature of these cases to their own benefit, on the assumption that all costs are paid out of the estate. The Supreme Court has recognised this problem and is currently implementing its own strategies, including intensive case management, the introduction of a new practice note for family provision, and a more restrictive approach to the recovery of costs.”

[1] Parliamentary Debates (Hansard), New South Wales, Legislative Assembly, 21 October 2008, p10286, Greg Smith first reading speech discussing The Succession Amendment (Family Provision) Bill 2008.

[2] Gillard J in Re Sitch [2005] VSC 383 at [4].

[3] Parliamentary Debates (Hansard), New South Wales, Legislative Counsel, 26 June 2008 p9424, The Hon. John Hatzistergos (Attorney General, Minister for Justice, and Acting Minister for Education and Training.

(Disclaimer: The material in this article is of a general nature and intended for information only. It is not intended to be comprehensive and does not constitute legal advice. Any person with a specific legal issue should consult a lawyer.)

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