September 13, 2023
When considering contesting a will for any reason, an early assessment should be made of the financial viability of doing so. As is well known, litigation is expensive, and contesting a will is no exception to this. It is commonly believed that the legal costs of all the parties involved in inheritance disputes automatically come out of the estate for all parties, however this is only in certain exceptions*, and the general rule in litigation that the costs follow the event – meaning the losing party pays the costs of the winning party – usually applies to probate disputes.
*The two exceptions to the general rule which could apply to a contested probate case were established in the High Court case of Spiers v English [1907] and their principles later confirmed in Costic v Chaplain [2007]:
1. If the testator or the persons interested in the residue of the estate have been the cause of litigation, the costs of unsuccessfully opposing probate may be incurred by the estate; and
2. If the circumstances of the case mean that it was reasonable for there to be an investigation concerning the will, then the parties’ costs should be borne by those who had incurred them.
These are fairly narrow exceptions, and because of the costs risks involved, serious consideration should be given as to whether a claim is worth pursuing. A lot of this will depend upon the prospects of the claim, so it is essential to contact a solicitor who specialises in contested wills and probate disputes as early as possible to get a better understanding of how likely it is that a claim is going to succeed, and so they can advise upon the steps which can be taken to minimise the risk of being liable for the other party’s costs, as well as their own costs.
The likely costs involved in contesting a will depend upon at what point the matter is resolved. If, after the sending of an initial letter by your solicitor and some brief correspondence back and forth, the opponent accepts your claim the fees are likely to be no more than a few thousand pounds at most, perhaps even less if the matter is quite straightforward.
If the matter is not resolved at this point, the parties may decide to engage in some form of ADR, likely mediation. Mediation is far more cost effective than court proceedings, with fees for straightforward disputes being somewhere in the region of £5,000 to £10,000 plus VAT. More complex disputes typically cost more to mediate, and depend entirely on the complexity of the matter and therefore the amount of preparation and mediation time which is needed, but in any event mediation usually costs far less than going to trial.
If, after this point, the matter is to progress to court proceedings, the costs can begin to escalate. To take any challenge to a Will all the way to a trial the fees are likely to be a minimum of £20,000 plus VAT in the most straightforward cases, with the potential for fees to reach the hundreds of thousands of pounds in complex cases.
In practice, most disputes are resolved before proceedings are issued, and a very small proportion of issued claims reach a trial or a final hearing. However, that risk does exist, so it is important to take advice early on from an experienced solicitor who specialises in contested wills and probate, with a view to reaching an early settlement to minimise the costs for both parties
At the outset you should explore whether there is any support available with regards to funding arrangements. Legal expenses insurance is increasingly common and is often included with home or car insurance policies, in many instances without the policy holder even being aware, and some of these may cover a cotested probate case, so this should be your first port of call.
If you do not have legal expenses insurance, then you might consider making enquiries with your solicitors as to whether the matter can be pursued via a conditional fee agreement (colloquially known as a no win no fee agreement). Some claims may also be suitable for deferred payment arragements, whereby the client does not have to pay some or all of their legal fees until they have received their inheritance.
Legal aid is not available for this type of claim.
Contested wills claims are usually complex, often needing expert evidence, for example from medical experts where there is a question of testamentary capacity, financial / property experts when the issue relates to the deceased’s assets like the value of their house or shareholdings, or a handwriting expert where there is an allegation of fraud.
In addition, Will disputes often involve disputes between family members where emotions and principles can get in the way of conciliatory discussion, which can then lead to the need for Court proceedings. This, in turn, requires the parties to incur Court fees, and fees for barristers to become involved with the drafting of the paperwork and appearing at hearings, which all mean additional costs on top of the ongoing fees for solicitors and any additional expert evidence which is required.
If you are considering contesting a will and want to discuss the matter with our specialist solicitors, call 029 2082 9100 or fill out an enquiry form to speak to one of our experts today.
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