Contesting an estate or a Will: who pays?

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Worrying about legal fees is one of the main reasons people hesitate to challenge a Will or raise a problem with an estate. It’s an understandable concern: you may be grieving, and the idea of adding legal fees on top can feel overwhelming.

The good news is that costs do not necessarily need to be a barrier to contesting an estate. In this blog, our contentious probate solicitors explain how these types of claims are typically paid for and what to consider before making a start.

Do I have to pay to contest an estate?

Yes, you will need to pay the legal costs associated with your claim. People sometimes presume that the legal fees can be paid out of the estate at the end of the claim if it is successful, but this is not necessarily the situation. Much depends on the case circumstances.

Whether legal costs are recovered depends on the terms of any settlement agreement or court order. The starting point is that parties must pay their lawyer’s fees out of their own pockets.

The unsuccessful party (whether you’re the claimant or defendant) would typically be ordered to pay the successful party’s costs (as well as their own). However, the amount recovered often falls short of the total spent.

Payment options for contesting an estate

Payment options can include:

  • Paying privately
  • Legal expenses insurance (such as Before the Event insurance)

In more limited circumstances via:

  • A Conditional Fee Agreement (‘no-win, no-fee’)
  • Deferred payment until the case concludes

How do solicitors charge for inheritance disputes?

At Barcan and Kirby, our contentious probate work is usually charged at an hourly rate. Our legal experts will discuss payment options and prospects of recovering any costs incurred in your initial meeting and help tailor their support to your specific needs.

We will give you an estimate at the start and keep you updated as the matter progresses.

How much does it cost to resolve a Will, Trust, or estate dispute?

There is no one-size-fits-all figure because every dispute is different. The cost may depend on:

  • Whether you are the claimant or defendant
  • The value of the estate and your claim
  • How long the dispute takes
  • How complex the issues are
  • Whether expert evidence is required
  • Whether the case must go to court

Most inheritance disputes are settled out of court, often without proceedings even being issued, via Alternative Dispute Resolution (ADR), e.g. mediation, negotiation or arbitration. This is sometimes referred to as Non-Court Dispute Resolution (NCDR).

The earlier a dispute is settled, the lower the cost generally is. The other benefit of reaching an agreement out of court is that resolutions can be creative, decisions can be made about how costs are shared, and consensus can be reached as to whether either side’s costs come out of the estate.

What happens if the case goes to court?

If parties cannot reach agreement via ADR, the court can decide who pays what. The usual starting point is ‘costs follow the event’, which means the person who ‘wins’ will normally have their legal costs paid by the person who ‘loses’.

This is not a guarantee, however, as the court has broad discretion and will consider the whole picture. Costs are at the discretion of the Judge, but there are some exceptions to the ‘costs follow the event’ rule that may apply to your case:

  • If the deceased’s actions, or the circumstances surrounding the preparation and signing of the Will, reasonably led to the dispute, the court may decide that costs should be paid out of the estate.
  • If there were reasonable grounds for bringing the claim, such as genuine concerns about the preparation or signing of the Will, the court may move away from the usual costs rule when exercising its discretion.

Will I have to pay if I lose?

Often, yes. This is why it’s important to understand the risk before you start, especially if it goes to court and ‘costs follow the event’ applies. This is also why settlement offers and ADR are so important. That said, it’s not always all or nothing.

The court will consider:

  • How each side behaved during the dispute (conduct)
  • Whether each side made a reasonable attempt to settle (offers)
  • Any refusals to engage in mediation or ADR generally
  • Whether you succeeded on some points but not others

What to consider before you make a contentious probate claim

While costs should not be a barrier to doing the right thing by your loved one’s estate, it is important to understand what costs might be involved, whether you ‘win’ or not. Balancing the costs against the risks of litigation is an essential task.

You should also think about time limits. Some claims have strict deadlines; for example, an Inheritance Act claim should usually be brought within six months of the Grant of Probate (or Letters of Administration) being issued. This isn’t that long, so it’s important to speak to a specialist solicitor as soon as you can.

How we can help

Our Contentious Trusts and Probate team can help with:

If you are concerned about any of the above, contact our specialist solicitors on 0117 325 2929 or fill out our enquiry form.

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