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    • Medical Negligence
    • Women’s Health
          • Women’s Health

            We know that there is disparity in women’s health care, treatment, and support. We are committed to improving the lives of women and strongly advocating for their wellbeing.  That is why we take a stand and hold medical professionals accountable when medical care falls short of expected standards by delivering the best outcome in medical negligence claims affecting women.

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    • Hospital Negligence
          • Hospital Negligence

            We understand you may feel let down because you have experienced inadequate or negligent care and treatment in a hospital or medical facility. Your wellbeing is most important to us and we are committed to supporting you with compassion and holding medical professionals accountable for breach of duty and negligent care.

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          • Clinical Support

            Experiencing poor or adverse outcomes from allied health treatment can be distressing and life changing. We are here to support you through your claim and it is our aim to hold allied health professionals accountable for their breach of care by delivering the outcome you deserve to your negligence claims.

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            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Personal Injury
          • Personal Injury

            If you have been injured because of someone else’s negligence, our specialist team of Personal Injury Lawyers is here to support you with compassion and understanding providing you with the right advice. Our team has substantial experience and expertise in these matters to deliver the outcomes you deserve from your claim.

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            We are here to support you and give you the clarity, guidance and the right legal advice if you have been injured in a motor vehicle accident. Our compassionate team of professionals in Personal Injury law have the technical expertise and a wealth of experience to win you the compensation you deserve.

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    • Public Liability
          • Public Liability

            Our specialist team in Personal Injury law is here to support you in accessing proper compensation if you have been injured because of someone else’s negligence. We have cutting edge expertise and experience in public liability claims to deliver the outcome you deserve.

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    • Abuse
          • Institutional Abuse

            We strongly believe that educational institutions must be held accountable when failing to protect children while in their care. If you have experienced institutional physical or sexual abuse, our specialist team in Personal Injury law is here to support you with compassion and offer our technical expertise and experience to deliver the best outcome in your case.

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    • Workers Compensation
          • Workers Compensation

            When you sustain an injury or illness because of work, you may be entitled to  compensation. Our specialist team in Personal Injury Law is here to support you with compassion and understanding with the right advice. We have substantial technical expertise to deliver the best possible outcome from your claim.

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    • School Negligence
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            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Wills & Estate Planning
          • Wills and Estates

            When we provide advice on estate planning, we believe  in giving advice on options to mitigate the risks of litigation by potentially unhappy family members and protecting your assets from claims. Our legal team is here to support you and address your concerns regarding your estate planning. We have immense experience in these matters, providing you with advice and representation for your unique situation and delivering the best outcomes for your case.

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    • Powers of Attorney
    • Contest A Will
          • Contest A Will

            We have immense experience and specialised knowledge in family provision and wills disputes Where you have not been properly and adequately provided for under a will or where you suspect that the person making the will may not have had capacity or exercised their own free will, you need a lawyer with extensive experience and expertise. Our team of Lawyers will  provide you with advice and representation for your unique situation and deliver the best outcomes for your case.

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            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Other Services Overview
          • Conrad Curry Can assist you with a variety of services

            Our solicitors are highly experienced in providing you with expert legal advice and will keep you informed every step of the way. It’s good to know that our firm is trusted and effective with a high success rate.

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    • Professional Negligence
          • Professional Negligence

            We rely on professionals in all aspects of our lives to provide us with proper advice on which to make decisions about our financial and legal affairs. When you are let down by poor advice the results can be devastating.  We are here to support you in your claim for compensation with clarity, guidance and the right advice to achieve the outcome you deserve.

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    • Malicious Prosecution
          • Malicious Prosecution

            We believe in standing up for those people who are falsely accused and prosecuted. Our experienced legal team is here to support you with compassion and provide you with clarity, guidance, and the right advice in your claim for compensation.

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    • General Litigation
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            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • What to Expect
          • What to expect

            We are your law firm for life. You can count on us for the best legal advice and compassionate support. We understand the challenges you are facing and we want you to know that you don’t have to navigate the often daunting process alone. We are here when you need us. Let us help you find your way forward with our empathetic and efficient approach. Contact us. You can call us on (02) 4050 0330 for a free initial no-obligation consultation or book an appointment online for an in-person consultation or an online video appointment.

  • No Win/No Fee Options

Court Ordered Will – Who Pays?

The Court’s Power to Make a Statutory Will

Under the Succession Act 2006 (NSW), the Court has the power to authorise a will to be made, altered or revoked for a person without testamentary capacity. The creation of such is termed a ‘court ordered’ or ‘statutory’ will. For a more in-depth analysis of statutory wills, please refer to our information sheet.

Power of the Court to Order Costs in Statutory Will Matters

The Court’s power to make costs orders in statutory will proceedings derives from three pieces of legislation, namely s 18(5) Succession Act 2006 (NSW), s 98(1) Civil Procedure Act 2005 (NSW) and r 42.1 Uniform Civil Procedure Rules 2005 (NSW). Combined, these legislative instruments give the court discretion as to the making of any orders as to costs.

An application for a statutory will is said to be protective in nature, as a successful action protects the wishes of a person who otherwise lacks testamentary capacity. In protective matters, there is no general rule that the protected person’s estate should bear all the costs of the parties involved in the action. Rather, the question is what costs orders would be proper. The Court has been cautious in its approach to determining questions of costs, in an attempt not to discourage meritorious statutory will applications.

Key Considerations for the Court When Awarding Costs

The court recently noted in A Ltd v J (No 2) [2017] NSWSC 896 that there are two matters (in particular) which must be considered when determining a costs order in statutory will proceedings, namely:

  1. Whether the application was properly brought; and
  2. Whether an order that costs be paid from the proposed testator’s assets would have any detrimental impact on the proposed testator’s wellbeing.

Therefore, the size of the estate and the future care needs of the incapable person are decisive factors.

What are Common Costs Orders?

There are different types of costs orders available to the Court. Solicitor/client costs are those costs charged by your solicitor. If you are on the receiving end of a favourable solicitor/client costs order, the entirety of your professional fees will be paid (either by the estate or another party to the proceedings). Conversely, party/party costs are those reasonably and proportionality incurred. Where party/party costs are ordered in your favour, this generally equates to recovery of approximately 60-80% of your costs as charged by your solicitor.

The Courts Approach to Costs Orders for Applicants and Defendants

Case law suggests that a successful statutory will applicant ought to have their solicitor/client costs paid out of the estate, as per Fenwick, Re; Application of J R Fenwick & Re Charles [2009] NSWSC 530 and A Ltd v J (No 2) [2017] NSWSC 896.

An unsuccessful defendant will also generally have their costs paid on a solicitor/client basis out of the estate. This is provided they have acted reasonably having regard to the protective character of the proceeding, and it was likewise necessary to hear the defendant’s submissions to enable the Court to reach a proper conclusion. However, as stated above, this will still depend on the size of the estate and the future care needs of the incapable person.

An unsuccessful applicant will also likely have their costs paid out of the estate, either on a party/party or arguably a solicitor/client basis. Although, the Court has ruled that where a plaintiff pursues an application beyond what is reasonable having regard to the protective character of the proceedings (eg pressing the case for their own advantage), they proceed from this point at their own risk as to costs. It could be that the plaintiff in these circumstances is ordered to pay not only their own costs, but also the defendant’s costs, from a certain point onwards, as per Re MP’S Statutory Will (No 2) [2019] NSWSC 491. To avoid costs implications, applicants should assess the likelihood of the application succeeding when they have enough forensic material to make a considered decision as to whether the action should continue, or proceedings should otherwise be dismissed.

Case Study: A Ltd v J (No 2) [2017] NSWSC 896); A Ltd v J (No 3) [2017] NSWSC 931

This matter involved a thirteen (13) year old child who had cerebral palsy resulting from birth and significant other physical problems. The child was found to lack permanent testamentary capacity.

The applicant was the child’s mother; she had been the manager of the child’s estate and the child’s primary carer since birth. The defendant was the child’s father. The parents separated in April 2010 and subsequently divorced.

The child was the youngest of six siblings, aged between 16 and 26. The siblings gave evidence that the father had contributed to their upbringing at the early stages of their lives and for a short time following their parents’ separation. Although, it was evident that the father had only been in sporadic contact with the relevant child in the years leading up to the mother’s application.

The court accepted the mother’s proposed testamentary regime, being that she would be entitled to 42.5% of the child’s estate, with the father and each of the siblings to have an equal share of the balance (ie approximate shares of 8.21%). The judge noted that such an apportionment reflected the reality of the situation, leaving aside who was to blame for the father’s estranged relationship with the child.

In this case, assistance was obtained from both parents in formulating the appropriate will to be made on behalf of the child. The Court accepted that there was a public interest in the claim being brought by the plaintiff and for all interested parties to be heard in order to enable the making of a statutory will.

Neither parent adopted an unreasonable position, nor conducted the proceedings in a manner to warrant criticism. Further, the Court noted an order that the parents’ costs be paid out of the estate would not adversely impact on the child’s financial position or his care and wellbeing. The child had previously received a settlement sum in the amount of $8.5 million against his birth hospital.

Ultimately, the court ruled it was proper for both the mother and father to have their costs paid out of the child’s estate on a solicitor/client basis.

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