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The changing nature of costs in Estate Litigation South Australia

estate planning in South Australia

The view that estates are easy picking for claimants and lawyers alike due to the estate often meeting the costs of claims is now facing increasing scrutiny in South Australia.

The current bench of the Supreme Court has made particular note of claimants pursuing applications without merit, with Chief Justice Kourakis making his own views clear in the matter of Roche & Roche:

“If a party ignores the weight of that evidential material and prosecutes an ultimately unmeritorious case to trial, the usual order that costs follow the event will be made. Exceptions from the ordinary order will not be made to allow beneficiaries a forum in which to air family disputes with impunity.”[1]

This view has recently been re-enforced (this time by Justice Stanley), In the Estate of Amuso, a decision handed down on 28 April 2021 and a further determination on costs made on 4 June 2021.[2]

The Application

Mr Rocco Amuso (the deceased) passed away on 18 February 2019, leaving no Will. A Grant of Letters of Administration was made to the deceased’s sister, Vincenza Gareffa (Ms Gareffa) on 11 October 2019.

However, the deceased’s brother Domenico Amuso (Mr Amuso) sought to have that grant overturned on the basis that the deceased had executed handwritten documents purporting to be his Last Will and Testament on 21 April 2017. The document provided for a far greater share of the estate to Mr Amuso than under the rules of intestacy, whereby the estate would be shared between the deceased’s four other siblings.

Alternatively, Mr Amuso sought an order entitling him to continue to reside at the deceased’s property based on estoppel by acquiescence. Mr Amuso argued that Ms Gareffa had agreed to his residence at the property following the deceased’s death until 17 October 2019 when she changed the locks on the property.

The Proceedings

Shortly before the trial, Mr Amuso maintained that the handwriting on the document was that of the deceased. However, upon the introduction of a report from a forensic handwriting expert, Mr Amuso changed his position and admitted that he had written the document, although the deceased had dictated the same to him and signed the document.

Of particular importance in relation to the issue of costs, Justice Stanley found Mr Amuso’s explanation for this shift to be less than satisfactory and found that Mr Amuso had written the document himself.

The Decision

Further, Justice Stanley determined that the document did not fulfill the requirements of section 12(2) of the Wills Act 1936 (SA), namely that it expressed the testamentary intentions of the deceased and the deceased intended the document to constitute his Will. It was held that it was highly unlikely the deceased had dictated the document to Mr Amuso and as such, it could not be held to represent the deceased’s intentions. Further, Mr Amuso’s evidence did not establish that the signature on the document was that of the deceased.

In relation to the application of estoppel by acquiescence, Justice Stanley held this application to fail at its first hurdle. Ms Gareffa had taken steps to remove Mr Amuso from the property on 17 October 2019, only 6 days after she had been appointed as administrator, and as such, acted promptly as owner on trust of the property. As such, Ms Gareffa had never agreed to Mr Amuso continuing to reside at the property once she was able to take control of the same.

The Cost

In relation to costs, Ms Gareffa sought that Mr Amuso pay the costs of the proceedings on a solicitor: client (otherwise known as “indemnity”) basis, both for herself as administrator and as a beneficiary of the estate. Mr Amuso opposed the Application, instead seeking the costs be paid on a party: party basis.

In short, Indemnity Costs are only awarded in exceptional circumstances designed to compensate a party for another party’s wrongful actions. This can include intentionally delaying proceedings, failing to properly negotiate or mediate, or bring a claim without merit.

In consideration of Mr Amuso’s claim, Justice Stanley held

“In propounding the document the applicant [Mr Amuso] has acted in wilful disregard of the facts. He has sought to pursue his own financial benefit at the expense of the other beneficiaries. He has done so knowing that the document he sought to propound was not the deceased’s last will and testament. The need for a trial was not caused, or contributed to, by the conduct of the testator.

In addition the applicant’s interlocutory application relied upon an estoppel by acquiescence claim in circumstances where no evidence was led by the applicant on most of the principal elements required to establish such a claim.”[3]

In sum, Justice Stanley ordered that Mr Amuso pay Ms Gareffa’s costs (both in her capacity as an administrator and beneficiary) from his entitlement in the estate due to Mr Amuso’s “self-interested and unmeritorious action.”[4]


The decision In the Estate of Amuso demonstrates the judiciary’s increasing fatigue over claims without merit being brought against estates without fear of financial loss. Increasingly high scrutiny will continue to be paid to claimants who do not properly consider whether their claim has merit, and the court has shown a willingness to order exceptional costs orders where claimants continue to bring flawed applications.

For specialist advice on estates and potential claims, contact our experienced Estates Team at Andersons Solicitors.


[1] [2017] SASC 175 at 18

[2] [2021] SASC 41

[3] In the Estate of Amuso (No 2) [2021] SASC 61 at 12, 13

[4] Ibid at 17

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Get in touch with today's blog writer:
Chris Mahoney

Associate in Wills and Estates

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal and South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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