Lessons for executors and practitioners acting in estate disputes

Often in disputes over estates, questions arise as to who should pay the parties’ costs.  Should the estate bear the cost, or should the proceedings be treated as any other civil litigation, in which the unsuccessful party must pay the costs of the successful party?

We outline aspects that both clients and their advisors should be aware of when involved in estate disputes.

First, costs are always at the discretion of the Court but, increasingly, Courts are ordering the unsuccessful parties to pay costs in estate and trust litigation.  Advisors must outline to clients their likely costs, and costs risks, at the outset.

Second, attempts need to be made to settle before costs spiral out of control.  While a high degree of emotion may often accompany estate disputes, a hard-nosed commercial approach must be brought to bear to the economics of pursuing and defending proceedings.

Third, executors must be very conscious of their costs risks.  They will be entitled to an indemnity for their costs when they have acted reasonably and properly.

Usually, where the beneficiaries are sui juris, the executors should take a neutral position and leave the beneficiaries to fight their own battles at their own costs. (The position may be different in the case of minors and incapacitated beneficiaries, and directions may need to be sought.)

See full article by Vanessa Bruton and Joanna Caen, TGT Legal at www.nzlawyermagazine.co.nz.

Published Autumn 2013.

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