Costs Of Contentious Probate Proceedings

There is a common misconception that whenever there are Court proceedings concerning the validity of a Will that the costs of all of the parties to the proceedings are paid out of the estate.  This is not correct. 

The question of who is responsible for costs in contentious probate proceedings is a complicated one which can depend upon the particular party to the proceedings.  Executors who adopt a mutual stance and simply do whatever is necessary to establish the validity or otherwise of the Will they have a duty to prove can expect their costs to be paid from the estate in most circumstances but parties to proceedings who are not executors or executors who are also beneficiaries and who therefore have a financial interest in the outcome of the litigation cannot always expect their costs to be paid out of the estate.

Deciphering the rules

The general rule is that each party will be responsible for his or her own costs during the course of the litigation. At the end of the case, the Judge decides which party should pay and the usual rule is that the losing party will pay for both parties. However, on many occasions, costs can be awarded out of the estate.

Are there exceptions?

The Courts acknowledge that in cases of disputed Wills very often the dispute is in no way the fault of any of the parties and a large proportion of the costs may have been incurred in carrying out investigations due to the fact that the principal witness i.e. the maker of the Will has died.  Accordingly in probate cases there are two long established principles which allow Judges to make exceptions to the general costs rule and to make a different Order :

1. Where the claim is the fault of the deceased such as where there is confusion and uncertainties surrounding the deceased's Will.
2. Where the circumstances of the particular case raise reasonable grounds for investigation.

The costs have the power to award costs in different ways.

Kostic vs. Chaplin

For example in the case of Kostic vs. Chaplin in 2007 the deceased left £8.2 million to the Conservative Party, thereby disinheriting his son but he also made various comments which called into question whether he had the legal capacity to make a valid Will. The costs of the case were extremely high.

The son won the case and satisfied the Court that his father lacked mental capacity and that therefore the Will was invalid thereby leaving him as the beneficiary of the estate.

The Court took the view, however, that rather than simply award costs against the losing party a different Order was appropriate.

The Court decided that it was entirely appropriate for the Conservative Party Association to make investigations into the deceased's capacity and obtain general information about the claim.  Accordingly up to that point the Association was entitled to receive its costs from the estate.

Then from the point at which the Association received the basic information up to the point at which the parties obtained expert evidence in the form of expert's reports each party should be responsible for its own costs. However, from the point at which the Conservative Party Association obtained its expert's report and still decided that the case should go to Court, to the end of the proceedings, the ordinary rule of "loser pays” should apply and the Association should therefore pay the successful party's costs for this period.

The question of costs and who is or who is likely to be responsible for them is therefore a matter which should be considered at the early stage of contested proceedings.