The Legal Costs Committee (Committee) has brought in some important changes relevant to legal practitioners who practice 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 practicing 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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