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02nd January 2019

The costs of contesting a Will

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It is difficult to estimate in advance the likely overall legal costs of contesting a Will because it is still not always possible, to predict the work that will be involved.

There are potentially so many variables that could apply to any given claim. Complications cannot always be foreseen and can arise as the case develops. Moreover, we are sometimes dependent on third parties for information and cannot predict their efficiency in giving the information we require, which may prolong the matter. All these factors make it very difficult to advise on potential legal costs.

It is important to seek legal advice prior to initiating any claim, since you ought to be aware of the potential costs consequences before you embark on litigation. Our specialist team will be able discuss and go through with you both the strengths and weaknesses of any potential claim and then be best-placed to advise upon the level of work which ought to be involved on a stage by stage basis, in order to give you an estimate of the likely costs to expect and plan for.

Regarding timescales, as explained above, we are often dependent upon matters beyond our control and as such timescales may vary significantly. Very few Will disputes go all the way to Trial. The objective with these types of cases, is to attempt to resolve the dispute between the parties involved ideally within correspondence, or at a formal mediation, in the most cost-effective manner. However, in those few situations where a resolution cannot be reached, resulting in court proceedings, generally speaking, each claim will not be listed for Trial before 12-18 months from the date the claim is issued at Court.

So, who is ultimately responsible for paying the legal costs of the claim?

If Court proceedings ensue, then in relation to such claims, the normal rules of litigation apply, namely the losing party pays the winning party’s costs. The Court has complete discretion as to costs and can order one party to bear all or a proportion of the other party’s costs as it sees fit. The losing party also remains responsible for their own costs.

Indeed, you should note that it is rare for the winning party to recover all of their costs from the losing party. As a very rough guide only, the successful party will often, but not always, recover approximately two thirds to three quarters of their costs from the losing party.

Many people believe that the legal costs of contesting a Will will always be met directly from the Deceased's estate, but this is not the case. While it is open to a Court to Order that the estate should bear some or all the parties costs of the action, this is usually only in very limited circumstances.

Given the potential legal costs that can be incurred in contesting a Will, it is recommended that any potential applicant receive legal advice from a contentious probate specialist, prior to bringing any Will challenge, upon the prospects of success and likely legal costs. It is important that you check whether or not you have any pre-existing insurance cover for legal costs. If not, it may be possible to obtain “after the event” insurance to cover the risk of liability to pay your opponent’s costs (and also possibly your own). However, the premium for such insurance can be expensive. We recommend that you give consideration to obtaining such cover and can assist you in identifying insurers offering this kind of policy.

If you need professional advice regarding contesting a Will, contact Hewitsons today on 0330 311 0885 and receive a free initial consultation with one of our expert solicitors. Alternatively, complete our consultation request form. We are members of the Association of Contentious Trusts and Probate Specialists (ACTAPS) and a Legal 500 ranked Top Tier Firm, so you can be reassured that your claim will be in safe hands.