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Court orders defendant to pay plaintiff’s costs after family provision claim

During any inheritance dispute, a Supreme Court Justice may need to make several judgments on many aspects of the will, including who will pay the costs of the litigation once the case comes to a close.

In one recent instance, the New South Wales Supreme Court ordered the defendant to pay all of the plaintiff’s costs associated with a motion filed earlier in the year. These costs would be assessed on an indemnity basis, with no right of the indemnity against the estate’s assets.

Court documents show Caterina Assunta Cirillo died on April 5, 2012, and her will was drafted on October 24, 2005. The will clearly outlined that all five of her children were to receive an equal share of the estate. Her sons Pasquale Cirillo, otherwise known as Peter, and Domenico “Mick” Cirillo were named as executors of the will.

Although there were never any problems among the children with the will’s validity, two of the children – daughter Maria and son Anthony – filed for family provision relief.

In addition to deciding the family provision claim in question, the court was also tasked with determining who would cover the costs of the legal proceedings.

Determining who pays in family provision claims

After the claims were made, the plaintiff filed a notice of motion seeking the enforcement of a caveat in the defendant’s claim, and that the defendant should pay all costs.

Plaintiff Peter argued that defendant Mick should pay his costs of the motion, however Mick argued that costs should be Peter’s responsibility. Meanwhile, Anthony asserted that regardless of the outcome of the decision, no costs should be allowed to come out of their final share of the estate.

After reviewing all of the evidence, the judge stated it was “plain enough” that the defendant should have to pay the costs.

“There is force in the plaintiff’s contention that there was no proper basis for the defendant’s caveats, the principal effect of which appears to have been to delay a grant of probate and due administration of the deceased’s estate,” wrote Judge Geoffrey Charles Lindsey.

“The defendant has not demonstrated an interest in the estate that would, relevantly, be affected if a grant of probate were to be made to the plaintiff.”

Mr Lindsay ordered the defendant to pay the costs of the motion filed by the plaintiff, and that these costs be assessed on the indemnity basis.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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