Legal Costs of Challenging a Will

The legal costs involved in challenging a Will can sometimes be very significant and often tens of thousands of pounds if the case cannot be settled and is ultimately decided by the Court. As such alternatives to Court action such as mediation or conciliation should normally be considered, particularly as compromises can often achieve a palatable solution in a tax efficient manner or provide outcomes that cannot often be achieved through the Court process.

It is not the case that the Court will normally order the legal costs of the dispute to be paid by the estate. The general rule, as in all litigation, is that losing party will be ordered to pay some of the winning parties costs. The risks and costs of litigation, particularly in relatively small estates, are therefore normally very significant.

However, there are two exceptions to the general rule that the loser will be ordered to pay the winner’s cost’s estate:

• Where the testator has been the cause of the litigation. In such a case the Court normally Orders that the costs be paid by the estate;
• Where the circumstances lead reasonably to an investigation with regard to the Will. In such a case each side usually bears their own costs.

In addition the Court is entitled to consider offers to settle the case made by the parties or the conduct of the parties.

Unreasonable conduct or a failure to accept a reasonable offer can result in parties being Ordered to pay the legal costs of the other.

Allegations of undue influence and fraud are particularly serious and unless they are proved will result in the party having made them being Ordered to pay the other parties’ legal costs.

In many cases, particularly given the legal costs and risks of litigation it may be possible to reach an acceptable settlement early in the process. Indeed, the parties are encouraged by the Courts to consider Court proceedings as a last resort and to engage in an early and reasonable exchange of information. That, ordinarily, enables a realistic assessment of the merits of a case to be formulated early and for meritorious cases to be settled.

How to contest a will

This is a complex area of law where you need expert advice.

If you are considering contesting a will, please contact Amanda Melton, our expert in contentious probate on 01494 790047 or email amanda.melton@ibblaw.co.uk