Two siblings went to court over their late father's estate. The estate was worth about $135,674. By the time they had finished one mediation, their combined legal bills were already around 46% of everything their father had left. On the projections before the Court, taking the fight to a final hearing would have consumed roughly 88% of the estate in legal fees.

The Supreme Court of New South Wales did something that, on the reported material, had not been done before in a family provision case in this state: it stepped in partway through and put a hard ceiling on what each side could recover in costs, before the case had been prepared for hearing.

This decision matters to anyone writing a will, and not for the reason you might expect. It is not really a case about who deserved what. It is a case about how a modest estate can be swallowed by the cost of arguing over it, and what that means for the way you plan.

What happened

The proceedings were a family provision claim. That is the type of case where someone who feels they have been left out of a will, or not left enough, asks the Court to alter how the estate is divided. In New South Wales those claims are brought under the Succession Act 2006.

Here the dispute was between two siblings over their father's estate. The judgment records an estate of approximately $135,674 — a real amount of money to most families, but a small estate by the standards of contested litigation.

The parties were sent to a court-ordered mediation, which did not resolve the matter. At that point the Court was told what the legal costs already were. Combined, they came to about 46% of the estate. The Court noted estimates of where costs would land if the case ran all the way to a final hearing, and those estimates pointed to something in the order of 88% of the estate.

Put plainly: on those figures, the siblings were on track to spend nearly nine dollars in every ten their father left behind on the argument about it.

What the Court decided

The Court held that this was an appropriate case for what the rules call a maximum costs order — a costs cap. Neither side would be permitted to recover more than $22,500 in legal fees, whether from the other party or out of the estate. The Court left open the possibility of varying that figure later if special circumstances justified it.

The significant feature is the timing. Costs capping in family provision matters has historically been dealt with at the end, once the outcome is known and the Court is deciding who pays for what. In this case the cap was imposed on an interlocutory basis — that is, partway through, after the failed mediation but before the case had been worked up for final hearing. On the reported material this is the first recorded instance of early costs capping in a family provision case in New South Wales.

The reasoning is one of proportionality. Statute requires the just, quick and cheap resolution of civil disputes. The Court accepted that where fees are on course to exceed the thing being fought over, it should take control of the costs rather than watch the estate disappear and deal with the wreckage afterwards.

The Court's intervention also changes the incentives. Once each side knows the most it can recover is $22,500, the calculation about whether to push on or settle looks very different.

The pattern this fits into

This is not an isolated decision. Later in the same year, in Re Estate Weinberger [2026] NSWSC 158, the Court dealt with costs at the other end of a case. That matter concerned an estate of roughly $400,000 to $500,000, disputed between a disabled son and the deceased's former de facto partner. The Court proposed a family provision order of $125,000 for the son, but on the footing that the lawyers for both sides would submit to an order capping costs at $70,000. The plaintiff's actual costs were $105,000.

The important point from that second case is the connection the Court drew: the judgment records that the amount of provision made for a claimant cannot sensibly be decided in isolation from the legal costs being run up. Costs are not a footnote to the outcome. They shape it.

Read together, the two decisions show a court willing to act on costs early, act on costs late, and raise the issue itself rather than wait to be asked.

Why this matters if you are writing a will

Most commentary on these cases is written for solicitors, and stops at the professional lesson. The more useful question for an ordinary person is what it tells you about planning.

A dispute is expensive out of all proportion to the estate. The figures here are the clearest illustration you will find. A six-figure estate, one failed mediation, and nearly half of it was already committed to fees. Whatever you think your family would inherit if there were a fight, the honest answer is materially less.

Small estates are the high-risk ones. There is a natural assumption that will disputes are a problem for wealthy families. It is the reverse. A large estate can absorb litigation costs; an estate of $135,000 cannot. If your estate is modest, the cost of ambiguity is proportionally far higher.

The Court cannot repair a badly planned estate for free. His Honour did what could be done here to preserve value, but a cap on recoverable costs is damage control, not a remedy. Nobody walked away from this better off than if the position had been clear at the outset.

Clarity is worth more than cleverness. Family provision claims are often driven less by the size of a gift than by the sense of being dismissed without explanation. A will that is unambiguous about who gets what — and, where it matters, why — removes a great deal of the fuel.

Practical steps

A few things follow from this, in descending order of importance.

Have a valid will at all. If you die without one, a statutory formula divides your estate regardless of what you would have wanted or what your family understands. We set out how that works in what happens if you die without a will.

Get the formalities right. A will that is challenged on execution grounds is the most avoidable dispute of all, and the rules are strict about who may witness and how. See witnessing requirements in NSW.

Think about who could claim. In New South Wales, a defined group of people — spouses, de facto partners, children, and certain others in a close personal relationship with the deceased — may bring a family provision claim. Knowing who is in that group is the starting point for reducing risk. Our guide to wills in NSW covers the state's rules.

Deal with the awkward cases explicitly. An estranged child, a second partner, a family member with greater needs than the others: these are where claims come from. Silence invites an argument about what you meant.

Revisit the will when life changes. A new relationship, a separation, a death, a significant change in assets. An out-of-date will is a common source of the exact mismatch between expectation and document that produces litigation. See who inherits if there is no valid will in NSW for what the fallback position actually looks like.

The short version

The Court capped each side's recoverable costs at $22,500 in a dispute over an estate of about $135,674, partway through the case, because the fees were on track to consume most of what was being fought over. It is a signal that courts in New South Wales will actively manage the cost of estate disputes.

It is also a reminder that the cheapest moment to resolve any of this is while you are alive and the document is in your hands. A clear, valid, current will is not a legal formality. On these numbers, it is the single highest-return piece of paperwork most people will ever complete.