The case of Harkness v Harkness (No 2) [2012] NSWSC 35 is a timely reminder that unsuccessful plaintiffs in family provision proceedings will not always be entitled to their costs of the litigation from the estate of the deceased.

In that case Associate Justice Hallen stated that:

“Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) [2010] VSCA 195. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant’s costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs.”

In Harkness, the plaintiff’s claim failed because she had failed to establish that she was an eligible person. Associate Justice Hallen found that had the plaintiff established that she was an eligible person she would have succeeded in her claim for provision. The plaintiff was essentially ordered to bear her own legal costs, notwithstanding that her health and her financial circumstances were somewhat perilous.

Persons considering making a claim for family provision should bear potential costs orders in mind when deciding whether to make a claim against a deceased estate.

For more information, contact Daniel Fleming at d.fleming@pigott.com.au