Legal Hypothetical: Carer faces considerable costs penalty

DANIEL and Mary, who have been married for 50 years, have two children, Peter and Penny.

Daniel passes-away, leaving the whole of his $1 million estate to Mary, aged 85.

Mary is suffering from a number of medical conditions and resides in a nursing home.

In tragic circumstances, Penny, aged 50, is non-verbal and severely disabled.

Peter, Penny’s carer, believes that due to her condition, she should receive funds from her father’s estate to meet her future expenses.

Peter commences action on Penny’s behalf, seeking $200,000 from Daniel’s estate.

The Court acknowledges that Penny is eligible to make a claim and accepts that she has a severe disability.

The evidence before the Court indicates that Penny’s needs are currently met by her NDIS package and Commonwealth pension.

Peter nonetheless argues that in addition, Penny needs a fund to meet “contingencies”.

He says that Penny’s future needs are difficult to predict and that she requires funds in case of a “rainy day”.

The Court notes that Penny has $25,000 in savings and under Mary’s will, Penny stands to receive an additional $20,000.

The Court considers that in the circumstances, Penny stands to hold sufficient funds to meet any unforeseen future expenses.

The Court refuses to exercise its discretion to provide Penny with additional funds from her father’s estate and dismisses her claim.

The claim is dismissed on the “usual” basis that the plaintiff pays the defendant’s costs.

Unfortunately, although Peter commenced action as Penny’s “tutor”, because he was the plaintiff in the proceedings, he personally stands to be liable to pay the defendant’s costs.

Sadly, Mary must now decide whether to enforce the costs order against Peter and if so, Peter must then decide whether he should seek further orders from the Court, that the costs are paid from Penny’s funds.

This case demonstrates the dangers of acting as a “tutor” and the importance of obtaining specialist legal advice.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and is not legal advice.

By Manny WOOD, Solicitor

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