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Cost Of Contesting A Will

The costs of contesting a Will are dependent on a number of factors, including but not limited to:

  1. The nature and complexity of the dispute/claim.
  2. The issues involved.
  3. The evidence which has to be gathered/considered.
  4. Whether expert evidence is required e.g. handwriting expert, psychiatric expert, valuation evidence, medical reports.
  5. The approach adopted by the parties to the dispute/claim and whether the parties adopt a consensual or adversarial approach.
  6. How far the matter progresses; i.e. whether it is resolved by negotiation/mediation or proceeds to Court trial.

Costs Of Contesting A Will

Tollers’ costs are based on time spent on a matter, and charged at an hourly rate. All time is recorded on the basis of 10 units per hour, each unit being 6 minutes. Letters, emails, telephone calls, meetings and perusal/preparation of documents are charged on a time spent basis, with a minimum charge of 1 unit.

Disbursements are 3rd party expenses, payable upfront on account, and may include, by way of example, Court fees, expert fees, Counsel fees etc.

Counsel (a barrister) may be instructed at any time during the course of a matter and is typically engaged to advise on the merits of a claim, to draft Court proceedings and represent the client at Court.

Legal Aid is not available for contesting a Will and so, in the first instance, the parties should check whether they have legal expenses insurance cover, or another scheme that may pay, or assist with the payment of legal fees. This could be under a specific legal expenses policy, or under a more general policy, such as household insurance.

In some circumstances, it may be possible to obtain litigation funding from a third-party provider (known as After the Event Insurance). The application process is rigorous and often the funder will want to see a favourable barrister’s opinion on the merits of a claim, which will be charged on a private fee-paying basis.

In any challenge to a Will, there are frequently three distinct parties involved (each party may be one or more persons):-

  1. The person(s) seeking to contest a Will.
  2. The Executor(s), whose role is entirely neutral but who will be engaged in the process to provide relevant information concerning the Deceased’s estate, to the parties and to the Court.
  3. The beneficiary (beneficiaries) of the disputed Will who defend the claim(s).

2 and 3 may often be the same individual.

A claim may therefore involve 3 or more sets of solicitors, particularly if the beneficiaries themselves have conflicting interests/views.

Rules Of Contesting A Will

If Court proceedings ensue, then the normal rules of litigation apply, meaning that the losing party pays the winning party’s costs. However, the Court retains complete discretion as to costs and may make any order they see appropriate. Costs will usually be assessed by the Court, and in most cases, the neutral Executors’ costs are recovered in full (either from the losing party or the estate), whilst the winning party will recover a large portion of their fees, but not all, from the losing party. The losing party also remains responsible for their own costs.

As mentioned above, in certain circumstances the Court may depart from the usual order on costs, for example,

  1. If it considers that the Deceased is responsible for, or contributed towards the claim, by their actions or inaction in life.
  2. A party wins on one but not all claims brought, it may only receive costs in respect of those successful claims, or a percentage of costs overall.
  3. Where a party behaves unreasonably it may disallow certain costs in any event.
  4. Where the ultimate order of the Court fails to better an earlier offer to settle, or Part 36 offer by the opponent.
  5. Where undue influence and/or fraud is alleged but does not succeed, the Court may award greater costs penalties.

In bringing and defending proceedings, it is worth considering trying to protect against any adverse costs order. In those circumstances, consideration should be given to putting forward a without prejudice proposal, or offer under Part 36 of the Civil Procedure Rules 1998 (known as a Part 36 offer). Information regarding the use of Part 36 offers can be discussed in further detail. However, unlike other claims against an estate, where the validity of the will is being contested, the Court is being asked to determine whether the will is valid or not, there is no middle ground.

Talk to Tollers

For further advice on the costs of contesting a Will…Talk to Tollers. Our highly experienced and dedicated team are here to help

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Our Cost Of Contesting A Will Experts

Annabel Harding
Trainee Solicitor
Annabel graduated from the University of Sheffield in June 2019 with a LLB Law with Honours degree and joined Tollers in November 2019. She is the first trainee solicitor at Tollers to undertake the Graduate Solicitor Apprenticeship Programme, and alongside her training with the Firm, Annabel is also studying towards the Solicitors Qualifying Exams.
Kerry Green
Paralegal
Kerry joined Tollers in April 2023 as a Paralegal working in the Corby Contentious Trust and Probate Department.
Tiffany Benson
Partner
Tiffany is a Partner and Head of Contentious Trusts and Probate at the Firm...
Annabel Harding
Trainee Solicitor
Kerry Green
Paralegal
Tiffany Benson
Partner
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