Deceased estate disputes can become very costly, very quickly. The law has developed a range of strategies to encourage litigants to resolve their disputes efficiently and affordably. Despite those strategies, intractable disputes can result in the blow out of legal expenses.

The general rule that costs follow the event (that is that the “winner” gets their costs paid from the “loser”), is often not an effective deterrent to dogged estate litigants because the overall outcome is usually affected by the impost of legal costs. In other words, the source of the funding of legal costs if usually the estate, in which the successful party usually has a clear interest.

The Queensland Newman government introduced a new rule that sets out matters to which a court may take into account when determining an order for costs.
In a nutshell, those matters are:

  1. the value of the property in dispute;
  2. whether legal costs have increased because of some fault of the party in regard to following the rules or unmeritorious, minor, or peripheral issues; and
  3. any offer of settlement made by any party.

I predict that this rule will be of significant utility when estates are litigated as parties will need to consider their litigation conduct to ensure that they act co-operatively in terms of compliance with the rules and court directions, and that genuine attempts to resolve disputes are made throughout the conduct of an estate dispute, particularly where the value of the estate is small.

I think it will also be of benefit where the estate is comprised of a primary, single asset, such as a family home, such that the costs of litigation have an impact on whether that property can be retained intact.

Succession lawyers like me are looking forward to seeing the application of the rule and are hopeful that it will reduce costs for our clients.