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Claims by disappointed children or partners to a share – or a greater share – of a deceased estate are becoming more common. These claims (known as family provision claims) have a significant impact upon the estate because of the costs involved, the delay in administering the estate because of litigation, and the potential adjustment by making further provision for the claimant. But is it possible that an unsuccessful claimant will have to pay the costs of the estate in defending the claim? The answer is yes, in some cases. The general position in litigation is that “costs follow the event”. That means that usually, a successful party will have their costs paid, an unsuccessful party will have to pay their own costs and those of the other party. A typical family provision application in the District Court, running to trial for 2 days with barristers, might result in the incurring of costs of somewhere between about $60,000 to $80,000 for each side, though in some cases it might be much more depending on what is in dispute. Not all of those costs would be recoverable on the usual basis of orders (that “standard basis”), a successful party would potentially recover about 60% of their costs on the standard basis and 80% on the indemnity basis, though in some instances the rate of recovery might be a lot less because of the arrangements of the party with their lawyer, perhaps where there is a “no win no fee” type of arrangement with a much higher rate of fees than the court scale. In family provisions however it is not uncommon for the courts to order – where the applicant failed and usually would have to pay the estate’s costs – that each party bear their own costs. This means that in many cases the estate will have to bear its own costs of the dispute, meaning that there is now (say) $80,000 less available for distribution to beneficiaries. This sort of order is dependent on the facts of the matter and the conduct of the litigation, including whether the case was borderline (i.e. it could have gone either way, which would tell against costs being awarded against the unsuccessful applicant) or poor or adventurous (which would suggest that costs should be ordered against the unsuccessful applicant). Also of relevance is the financial position of the applicant (would they suffer significantly if costs were ordered against them) and whether the estate had made a reasonable offer of settlement. These factors were considered in the decision of Dawson v. Joiner (No.2) [2011] QSC 403, with a very handy discussion of the state of the law in respect of the costs of these applications. If you are considering making a claim against an estate, or intend to oppose one, please do not hesitate to contact Peter Muller at peterm@qbmlaw.com.au

From our offices at the corner of Bundall Road and Karp Court, Bundall, we have been watching the development of the Gold Coast City cultural precinct with interest. The HOTA building in particular has generated very strong opinion, count me a bit of a fan. Bundall is a good location for a law firm, nice and central and in a business hub. We have been in this building for 20 years, and in these offices for almost all of that. Our position in Karp Court in particular has access to parking and other facilities that makes it easy for clients to visit.

One of the benefits of the use of a testamentary discretionary trust in making a Will is that – by giving the gift to a trust for the benefit of a particular class of people – if one of them is bankrupted then the gift will potentially be protected from claims by the trustee in bankruptcy as the bankrupt beneficiary was not the “owner” of it, due to the discretion of the trustee to apply the benefit among different people. That is linked to the ability to distribute income amongst potential beneficiaries which may have taxation benefits. It is common for these sorts of Wills to be accompanied by a letter of wishes which provides guidance to the trustees of the testamentary discretionary trust.  It is important however to ensure that these letters of guidance do not form binding directions which would otherwise create a situation where the trust is no longer discretionary but a fixed trust, undermining the effectiveness of the trust structure so that the gift can be taken by the trustee of a bankrupt beneficiary.  We have recently seen an example of such a document which in this case was characterised as instructions to the appointors of the trust.  In this case, the letter of instructions, signed by the Will maker, went into some detail to explain that the purpose of the trust structure was to protect the assets of the beneficiary in the event that a claim was made against her and there was a risk of creditors accessing those assets.  It then went on to set out what should be done if there was a risk of the bankruptcy of the beneficiary, or matrimonial proceedings. This sort of document might evidence that the purpose of the structure is to hinder or delay future creditors from recovering their debts and thereby trigger the entitlement of the trustee in bankruptcy of the bankrupt beneficiary to claw back the estate gift under section 121 of the Bankruptcy Act. It might also create some question as to the effectiveness of distributions of income, for taxation purposes although that is something that a taxation specialist would need to consider. For questions concerning testamentary discretionary trusts and Wills, please contact Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com.au

Hot on the heels of the criminalisation of wage theft in Queensland which we mentioned a few months ago, the Federal Government has (in December 2020) introduced a bill to amend the Fair Work Act so as to criminalise wage theft at a Commonwealth level. At the time of posting (17 December) the bill has not passed. The bill requires that the wage theft is dishonest and systematic, and sets out indicia for those terms which makes for an easier assessment than the Queensland legislation which requires a fraudulent act. Interestingly the Commonwealth legislation also clarifies that “an individual involved in the contravention” is liable to be prosecuted, which would include the officers of corporations where they have engaged in the conduct, and potentially other persons even if they are not officers. Maximum penalties are very significant – imprisonment for 4 years and fines exceeding $1M for individuals, fines exceeding $5M for corporations. All the more reason to be careful with wages and entitlement, and also to ensure that if it is a delegated task, it is reviewed externally to make sure it is being done correctly.