Costs in Will Disputes Cases

Legal costs shape almost every decision in a will or probate dispute, from whether to issue proceedings to whether to accept an offer. At JMW, our Private Wealth Disputes solicitors advise on contentious probate costs throughout a dispute, not simply at the end.

We assess your likely costs exposure at the outset and build it into the strategy for your case. We advise on when negotiation or mediation offers a better route than continuing to trial, and where proceedings are necessary, we take steps to protect your position on costs as the case develops.

Whether you are bringing or defending a claim, we will set out where you stand and what each decision could mean for the final costs position.

To discuss the costs of bringing or defending a will dispute, call us on 0345 872 6666 or complete our online enquiry form.

How JMW Can Help

Costs can have a significant bearing on how a contentious probate dispute should be approached. Our specialist will dispute solicitors consider the costs position alongside the legal merits of your case, so you can make informed decisions about how far to pursue a dispute, when to negotiate and at what point court action is appropriate.

We advise beneficiaries, executors, personal representatives, trustees and other interested parties on issues including:

• Assessing the likely legal costs and costs exposure at the outset of a will dispute
• Advising on who may ultimately be responsible for contentious probate costs
• Developing a litigation strategy that takes account of the potential costs as well as the outcome you are seeking
• Advising on settlement offers and the potential consequences of accepting or rejecting them
• Negotiating and using mediation to seek an early resolution
• Advising executors and personal representatives on when costs can properly be met from the deceased’s estate
• Advising trustees and personal representatives on Beddoe applications and other forms of costs protection
• Representing clients where the parties disagree about liability for legal costs
• Advising on funding arrangements, including conditional fee agreements where available

The court can consider the conduct of the parties, their success on different issues, settlement offers and engagement with alternative dispute resolution when deciding what costs order to make. We therefore manage costs strategy throughout the case, so that decisions made during the dispute support your wider position if costs later come before the court.

Where court proceedings are necessary, we pursue your case decisively while continuing to consider opportunities to resolve the dispute on terms that reflect both the substantive issues and the legal costs involved.

Meet the Team

Our Private Wealth Disputes team combines specialist expertise in contentious probate with extensive litigation experience, allowing us to advise strategically on the dispute itself, the consequences of each decision and the most effective route towards a favourable resolution.

How JMW Can Help

No matter what the details of your specific case may be, JMW’s will disputes team will help make the process of determining cost simple and transparent. We have years of experience in handling all aspects of the contentious probate process, including its associated costs, for individuals and organisations of all sizes.

Working closely with our colleagues in our Wills, Trusts and Estate Planning and Court of Protection departments, we will provide you with specialist advice tailored to your specific circumstances. Our focus is on giving you pragmatic advice in clear English, helping to demystify what can often feel like a daunting process and ensuring you achieve the best advice and outcome.

Our Accreditations

Our Private Wealth Disputes team includes solicitors recognised by leading professional directories and specialist organisations, including:

• The Legal 500: JMW is ranked as a Tier 1 firm for contentious trusts and probate in the North West.
• Chambers and Partners High Net Worth Firms: members of our team are ranked at the highest possible grade for private wealth disputes.
• The Association of Contentious Trusts and Probate Specialists (ACTAPS): as members we have agreed to provide the highest quality of service to our clients.
• Society of Trusts and Estate Practitioners (STEP): membership means a commitment to high professional standards and continued professional development in the area of trusts and estates.
• Special Interest Group for Contentious Trusts and Estates: we contribute specialist knowledge and insight on developments in contentious trusts and estates, and lead the way in shaping best practice and advance thinking across this specialist area of law.

Who Pays the Costs in a Contentious Probate Dispute?

At the start of a will dispute, each party will normally be responsible for paying their own legal costs. If the dispute reaches court, however, the judge has discretion to determine who should ultimately contribute towards those costs.

Under the Civil Procedure Rules, the general rule is that the unsuccessful party pays the successful party’s costs. However, the court can make a different order and may require payment of all, part or a specified proportion of another party’s costs.

Winning a case also does not necessarily mean that every pound spent on legal costs will be recovered. Where costs are assessed on the standard basis, the court will only allow costs that it considers reasonable and proportionate.

This makes costs strategy an important part of a contentious probate case from the outset. The solicitors at JMW will explain your potential exposure, what costs may be recoverable and how decisions made during the litigation could affect the final position.

What Does the Court Consider When Deciding Who Pays?

The outcome of the dispute is an important factor, but it is not the only consideration. The court has discretion over costs and will consider the circumstances of the case. Relevant factors may include:

The outcome of the case

The court will consider who succeeded overall, but it can also look at success on individual issues. A party who wins the case may not necessarily recover all of their costs if they were unsuccessful on significant parts of it.

The conduct of the parties

The way each party approaches the dispute can affect the costs order. The court can consider whether it was reasonable to pursue or contest particular issues, how the case was conducted and whether the parties engaged appropriately with the pre-action process and alternative dispute resolution.

We advise throughout the case on how your decisions may affect the costs position, helping you pursue your objectives while avoiding unnecessary costs exposure.

Settlement offers

Offers made during the dispute can have important costs consequences.

A Part 36 offer is a formal settlement offer made under the Civil Procedure Rules. Depending on who makes the offer and the eventual result of the case, failing to beat a relevant Part 36 offer at trial can alter the costs position from the point at which the relevant offer period expired.

Alongside considering the amount offered, we assess settlements through the potential costs that could be incurred through acceptance or rejection.

Whether the circumstances created a reasonable need for litigation

Probate cases have developed particular principles concerning costs. The courts have recognised circumstances in which the conduct of the testator or those interested in the residue may have caused the litigation, as well as cases where the surrounding circumstances reasonably called for investigation. These principles can affect the way the court approaches costs, although they do not mean that estate funds automatically pay for an unsuccessful challenge.

What Do ‘Costs in the Case’ and Other Costs Orders Mean?

The court can make different costs orders during proceedings. The table below summarises four of the orders most relevant to contentious probate disputes.

When Can Contentious Probate Costs Be Paid From the Estate?

The costs of a will dispute are not automatically paid from the deceased’s estate.

Different rules apply to trustees and personal representatives. They may be entitled to recover costs properly incurred from the relevant trust fund or estate.

Whether those costs were properly incurred can depend on factors including:

• Whether they obtained directions from the court before bringing or defending proceedings
• Whether they acted in the interests of the fund or estate
• Whether they acted unreasonably in bringing, defending or conducting the proceedings

This does not give beneficiaries or other parties a general right to fund litigation from estate assets. We advise on whether estate funds can properly be used and on any risk of personal liability for costs.

What Is a Beddoe Order?

A Beddoe order is a form of court protection for trustees and personal representatives who need to bring, defend or continue litigation on behalf of a trust or deceased’s estate.

Before committing trust or estate funds to litigation, they can ask the court for directions on the proposed action. The application will usually address:

• The merits of the proposed litigation
• The significance of the dispute to the trust or estate
• The likely legal costs
• The potential exposure to another party’s costs

Court approval can provide important protection in relation to costs properly incurred from the relevant fund or estate. The Civil Procedure Rules expressly recognise Beddoe applications as a means for trustees and personal representatives to seek this protection.

Our contentious probate solicitors advise on whether a Beddoe application is appropriate. We prepare the evidence and present the application to the court on your behalf.

How Much Does It Cost to Contest a Will?

There is no single figure that applies to the cost of contesting a will. The amount of work required depends on the nature of the dispute and how it develops.

Factors that will affect the costs include:

• The number and complexity of the legal issues
• The amount of documentary and witness evidence required
• The number of beneficiaries or other parties involved
• Whether expert evidence is required
• Whether the parties can resolve the matter through negotiation or mediation
• The number of interim applications required
• Whether court proceedings are issued
• Whether the case proceeds to a final trial

A dispute that resolves through focused negotiations will require a different level of work from one involving substantial evidence and a contested trial.

At the outset, JMW will discuss the likely scope of work and potential legal costs with you. We will also review the position as the dispute develops, and keep you updated on any further costs. This gives you the information needed to weigh the likely costs against the value and importance of the outcome you are seeking.

How Can a Will Dispute Be Funded?

The appropriate funding arrangement will depend on your circumstances and the nature of the dispute. For example, you may be:

• Paying legal fees privately
• Have legal expenses insurance
• Using a deferred payment arrangements where appropriate
• Under a conditional fee agreement in suitable cases

A conditional fee agreement is often described as a no win, no fee agreement. It determines how your own legal fees are funded but does not mean that all costs will automatically be recovered from the other party.

Q

Does the loser always pay the costs in a will dispute?

A

No. Although the general rule is that the unsuccessful party pays the successful party’s costs, the court has discretion to make a different order. It can take account of the parties’ conduct, partial success and settlement offers, among other circumstances.

Q

Who pays the costs of an Inheritance Act claim?

A

There is no automatic rule that the deceased’s estate pays the costs of an Inheritance Act claim. The court retains discretion over costs, and the general civil costs principles may apply. This means costs strategy should form part of the claim from the outset rather than being considered only if the dispute reaches a final hearing.

Q

Can legal costs be paid from the deceased’s estate?

A

In some circumstances, particularly where a personal representative has properly incurred costs while acting in the interests of the estate. However, estate funding is not automatic, and the position depends on who incurred the costs and why.

Q

What does ‘costs in the case’ mean?

A

It means that the costs of the particular application or stage will follow the final costs decision. The party ultimately entitled to costs at the end of the proceedings will generally also receive the costs covered by the earlier ‘costs in the case’ order.

Q

What does ‘no order as to costs’ mean?

A

It generally means that each party pays their own costs relating to the particular part of the proceedings covered by the order.

Q

Can an executor be personally liable for legal costs?

A

Potentially. Personal representatives have protection for costs properly incurred in the interests of the estate, but the court can consider whether they acted reasonably and whether the litigation was genuinely pursued for the estate’s benefit. Obtaining directions from the court can be relevant to this protection.

Q

Can I recover all of my legal costs if I win?

A

Not necessarily. Even where another party is ordered to pay your costs, the amount may be assessed by the court. On the standard basis, only reasonable and proportionate costs are recoverable.

Q

Can mediation reduce the costs of a probate dispute?

A

Mediation can provide an opportunity to resolve a dispute without taking every issue through to trial. It can therefore limit the further legal work required if an agreement is reached.

The court can also consider whether parties have engaged appropriately with alternative dispute resolution when deciding costs, making it important to consider mediation as part of the wider litigation strategy.