Family Provision Application (Respondent) - Executor Active Defence vs. Neutral Stance

Can the court cap costs in a small estate?: Yes. In a family provision application the court may cap the costs a party can recover, including where the net distributable value of the estate, excluding the costs of the proceeding, is less than $500,000 (Amended Practice Direction 14 of 2023 para 42, version of 14 June 2024).

Jurisdiction: Supreme Court of Queensland (Trial Division).

The Process at a Glance: Assess the claim's merits and the beneficiaries' willingness to fund an active defence. If the claim appears weak or the estate is modest, the executor may wish to actively oppose. If the beneficiaries are capable adults who wish to contest the claim themselves, the executor can adopt a neutral stance, file the estate inventory, and leave the contest to the beneficiaries as respondents in their own right. Advise all beneficiaries of their right to appear and be heard. Document the decision and its rationale in the file. Attend mediation regardless of the stance adopted.

Key Legislation and Case Law: Succession Act 1981 (QLD) s 41 (family provision orders; s 41(3) incidence on the estate) and s 44 (protection of personal representatives). Amended Practice Direction 14 of 2023 paras 31-42 and Appendix A (directions and notices in family provision applications; costs capping). Costs of a proceeding are in the discretion of the court but follow the event unless the court orders otherwise (UCPR r 681); where the executor actively defends and loses, the court may award costs against the estate.

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