Contentious Probate Costs: Who Pays?

There is a common misconception that when a contentious probate dispute arises over the validity of a will, all parties’ legal costs are covered by the estate. This is not always the case.

The question of who pays the contentious probate costs depends on many factors, including the role of the parties involved and the nature of the dispute. Executors who act neutrally and focus on proving or disproving the will’s validity can often recover their costs from the estate. However, beneficiaries or other parties with a financial interest in the dispute may not be entitled to recover their legal expenses in the same way.

How contentious probate costs are decided

The general rule in contentious probate proceedings is that each party is responsible for their own legal costs during the dispute. At the conclusion of the case, the court will determine who should pay. In some instances, the losing party is ordered to cover both sides’ legal fees, especially if misconduct by an executor or someone else is proved. However, there are exceptions, and in some circumstances, costs may be awarded from the deceased person's estate or the party challenging the will may have to pay their own costs.

Exceptions to the general costs rule

The Court recognises that many inheritance disputes arise through no fault of the parties involved. Because the person who made the will has passed away, disputes often require extensive investigation. As a result, the  Court can apply two exceptions when deciding on contentious probate costs:

1. If the deceased is responsible for the dispute: for example, if the will contains errors or ambiguities that lead to legal uncertainty.
2. If reasonable grounds for investigation exist: such as concerns over undue influence, lack of mental capacity or fraud.

In such cases, the court has the discretion to order costs to be paid from the estate rather than by the losing party alone.

How the court awards costs in contentious probate cases

Probate proceedings are resolved and costs assigned based on the circumstances of each case. The costs position differs according to the status of the parties, be they Executors or beneficiaries; in some cases costs will be met by the estate and in others, costs will be bourne by the party themselves.The case of Kostic v Chaplin (2007) illustrates how these decisions can be made.

Kostic v Chaplin: how contentious probate costs were handled

In Kostic v Chaplin [2007], the deceased left an £8.2 million estate to the Conservative Party, disinheriting his son. Kostic’s erratic behaviour raised concerns about whether he had the legal capacity to make a valid will.

After a court battle, his son successfully contested the validity of the will, proving that his father lacked testamentary capacity. However, the Conservative Party Association, which stood to benefit from the will, had also incurred significant legal costs investigating the claim.

The court took the following approach when deciding who should pay:

• Up to the point where the Conservative Party Association was gathering general information, its legal costs were covered by the estate.
• From the point at which both parties sought expert reports, each side was responsible for its own costs.
• Once the Conservative Party Association obtained its expert report but continued to pursue the claim despite clear evidence against it, the court applied the usual ‘loser pays’ rule - ordering the organisation to cover the successful party’s legal costs for that period.

For more guidance on resolving disputes, you can refer to the Gazette's notes on contesting a will or the Law Society’s advice on contentious probate.

Managing the cost of contesting a will

Given the financial risks involved in contesting a will, it is important to assess the potential costs of contentious probate at an early stage. Whether the issue relates to concerns about reasonable financial provision, disputes between personal representatives or the grant of probate, seeking legal advice from the experts at Clough & Willis will allow you to establish whether you have grounds to bring a contentious probate claim. No matter how complex the case, we can develop a strategy to resolve the dispute fairly and as quickly as possible.