Family Provision Act Claims: New Costs Determination Caps Introduced

The Legal Costs Committee (Committee) has brought in some important changes relevant to legal practitioners who practise in the area of contested deceased estates. The Committee has introduced caps on the amount of party and party costs recoverable in applications for further provision from an estate.

What lawyers practising in the area of contested deceased estates need to know

Below is a summary of the changes implemented by the Committee as set out in Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA). It applies to work undertaken from 1 July 2018:

  • Item 12(a) caps the maximum allowance for plaintiffs, executors and beneficiary defendants prior to their participation in mediation at $7,250, $1,000 and $4,000 respectively. The Committee has specifically mentioned that the allowances should be reduced if affidavit material goes beyond the scope of what is necessary and required.
  • Item 12(b) caps the maximum daily allowance for participation in mediation by plaintiffs, executors and beneficiary defendants at $4,000, $1,000 and $4,000 respectively. Notably for executors (or personal representatives) this is capped at $1000 to reflect the limited role they have in these sorts of proceedings. Namely, their role is principally to assist the court by informing it as to the size of the estate.
  • Item 12(c) caps the maximum sum claimable following trial which has been capped at 40 hours at the relevant practitioner scale rate.
  • Most notably, item 12 specifies that, unless otherwise ordered, a successful claimant cannot seek costs in excess of the amount of provision they are awarded.
Why these changes

The above might be a result of the recent comments by Justice Curthoys as to proportionality in the decision of Miller v Taylor [2018] WASC 75, where the total legal costs for a modest estate were at least 50% (and potentially up to 80%) of the value of the estate.

For more information or any other wills or estates matter, please contact litigator Ann Spencer on (08) 9321 3755.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.