Contesting a will can be expensive, and the question of who ultimately pays the legal costs is often more important to families than they realise before starting a claim. Unlike some areas of law, there is no simple rule that the estate always pays, or that losing always means paying the other side’s bill. The outcome depends on how the case is run and, in some cases, on how the will itself came to be made.
Plain-English guide written by Simon Jenkins — covering every stage of the probate process.
The general rule: the loser usually pays
In most civil litigation, including most contested will claims, the general rule under the Civil Procedure Rules is that the unsuccessful party pays a contribution towards the successful party’s legal costs, in addition to their own. This means that bringing or defending a weak claim carries real financial risk, not just the cost of your own solicitor, but a costs order against you if you lose.
The exceptions that make probate disputes different
Will disputes have long recognised two important exceptions to the usual rule. The first applies where the person who made the will, or those closely connected with it, caused the litigation, for example by the way the will was drafted, witnessed or kept. In these cases, the court can order that the costs of establishing which will is valid come out of the estate itself, regardless of who wins. The second applies where there were reasonable grounds to investigate the circumstances of the will, for example genuine concerns about the testator’s mental capacity or undue influence. Here, the court may decide that each side bears its own costs, win or lose, because it was reasonable for the matter to be tested in court.
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Why these exceptions are applied more cautiously today
Modern courts apply these older exceptions more sparingly than in the past, and the starting point in most disputes remains the standard costs rule that the loser pays. Claimants and defendants are expected to behave reasonably throughout, including considering settlement and alternative dispute resolution such as mediation. A party who refuses a reasonable settlement offer and then does no better at trial can be penalised in costs even if they technically win the underlying claim, under the rules governing formal settlement offers.
Why costs can escalate quickly
Contested probate cases often involve detailed medical evidence, expert reports on capacity, and evidence from the solicitor or will writer who prepared the document, sometimes obtained through a formal request for their file, commonly known as a Larke v Nugus letter. Each of these steps adds cost. It is common, particularly in estates of modest value, for legal costs on both sides to approach or even exceed the value of the asset being argued over, which is one of the strongest practical reasons to explore settlement early. Our guide to the grounds for contesting a will explains the legal tests that have to be met before a claim is worth bringing at all.
Practical steps to manage the costs risk
Before issuing any claim, it is worth obtaining clear advice on the strength of the case, the likely costs exposure on both sides, and whether an early without-prejudice conversation with the other party could resolve matters without litigation. Many contested will disputes settle through mediation once both sides have taken proper legal advice and understand the costs risk they each face.
How Curtis Legal can help
Whether you are considering contesting a will or defending one, understanding the costs position from the outset is essential to making a sensible decision. Read more on our main probate pages, or get in touch to discuss your options and the likely costs involved.
Frequently Asked Questions
Does the estate always pay the legal costs of contesting a will?
No. The general rule is that the losing party pays a contribution to the winning party’s costs. The estate only bears the costs in specific circumstances, mainly where the litigation was caused by the way the will itself was prepared.
What happens if I lose a will dispute?
Under the usual costs rule, the losing party can be ordered to pay a contribution towards the winning party’s legal costs, in addition to their own, unless one of the recognised exceptions for probate disputes applies.
When might each side pay their own costs regardless of outcome?
Where there were reasonable grounds to investigate the validity of the will, for example genuine concerns about mental capacity or undue influence, a court may order that each party bears its own costs.
Why do contested probate costs escalate quickly?
Medical evidence, expert reports and disclosure from the will writer all add significant cost, and in modest estates the legal costs on both sides can approach or exceed the value of the asset in dispute.
Is mediation common in will disputes?
Yes. Many contested will claims settle through mediation once both sides understand the strength of the case and the costs risk they each face if the matter proceeds to trial.
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If you are considering contesting a will, or need to defend one, call us on 0800 214 216 for a same-day callback to discuss the costs risks involved.
Written by Simon Jenkins, solicitor and director of Curtis Legal Limited (Simon Jenkins SRA 167489; Curtis Legal Limited SRA 450129).
