Contentious Probate Costs: Who Pays Legal Costs?
Contentious probate proceedings generally arise over a dispute relating to a deceased person’s estate. This could be irrespective of the size of the estate and instead concern the allocation of the assets or the management of the estate itself.
Contentious Probate Legal Costs
When faced with questions regarding contentious probate legal costs, it can be difficult to provide an absolute answer. This is because each case is very different and the incurred costs can vary depending on the length of the dispute, the number of parties to the proceedings and the central issue in the matter. As a result, costs can vary from small figures such as £1,500 to over £100,000.
The General Process for Contentious Probate Costs
When a contentious probate case arises, a party will be expected to cover their own costs for the litigation. Then, costs will be re-considered again upon conclusion of the litigation.
Parties should not have the expectation that they will be able to pay the legal costs out of the Estate through a Beddoe Order. In most matters, this is not allowed. In cases like Williams v Martin, the losing party was made to bear £100,000 in legal costs, even when he stated that he could not afford that. Therefore, parties should never act under the impression that they won’t have to pay their own fees.
Once a matter has settled, the judge will decide who should bear the costs for conducting the matter. Generally, the loser pays the legal costs. Nevertheless, there can be exceptions to this rule.
Exceptions to the General Rule
Firstly, an exception to the general costs rules exists if a will is ambiguous and the court are required to decipher what the deceased intended.
Secondly, a further exception exists if the maker of the will is a party to the proceedings.
Moreover, within contentious probate proceedings, a defendant must provide notice of their intention to defend the will within their defence. Then, the defendant must be prepared to cross examine the available witnesses, in order to defend the will effectively. This rule is contained within CPR 57.5(a). The party must also have reasonable grounds to bring a claim in the first place (CPR 57.5(b)).
These exceptions exist because the court acknowledge that a large number of disputes relating to wills can be centralized upon issues unrelated to the parties, such as ambiguity of the will. As a result of this, the court does not believe that the losing party should always bear all of the costs.
In matters where one of these exceptions applies, the court will provide a different costs order. It is likely that the court will bear costs in mind during the early stages of the litigation as there are often many factors to consider.
Contentious Probate Costs Case Law: Spiers v English
The case of Spiers v English  P 122 was instrumental in setting down the first two aforementioned exceptions in contentious probate costs.
When establishing that the general rule should not apply if the will was ambiguous in any way, the court in Spiers v English looked to the matter of Davies and Gregory (1873) LR P&D 28. It was decided here that a costs order should not apply when the litigation was neither party’s fault. Instead, each party should bear their own legal costs.
Moreover, the judgment in Spiers referred to Mitchell v Gard  3 Sw&Tr 275 when establishing that a court would have to consider how much the deceased could be ‘blamed’ for confusion with the will. Later case law clarified that it is less so ‘blame’ in a moral sense and instead, the court are looking at causal links. (Kostic v Chaplin).
Contentious Probate Costs Case Law: Kostic v Chaplin
The exceptions were demonstrated in the case of Kostic v Chaplin  EWHC 2298 (Ch) when the deceased’s estate contained £8.2 million in assets, which were to be given to the Conservative Party. As a result of this choice, the son of the deceased was not due to receive anything from the will.
In the end, the court concluded that the deceased lacked the mental capacity to make such an important choice. This resulted in the son being made the sole beneficiary of the deceased’s estate.
Legal costs were an important issue in this matter as the costs in the case were very high, therefore the court were required to give them due consideration.
When establishing whether the general rule of ‘loser pays’ should apply to Kostic v Chaplin, the court decided that it only applied to a certain extent.
So, the Conservative Party Association were allowed to recover the legal costs from the estate, but only for actions which related to the investigations into the capacity of the deceased, as these investigations were deemed reasonable. Nevertheless, more investigations continued and expert witnesses were used, so the court decided that the Conservative Party Association would have to cover their own costs. Alongside this, they were required to pay the successful party’s costs for this period.
Contentious Probate Case Law: James v James and Others
Another important case within this area of the law, is James v James and Others  EWHC 242 (Ch). In this matter the son of the deceased brought a claim against his mother and sister, regarding the father/husband’s will. However, the mother and sister successfully defended themselves via a counterclaim and the son was unsuccessful.
In terms of costs, the court’s consideration focused on whether the Part 36 offer proposed by the defendants (mother/sister) during the proceedings was valid. The defendant made an offer on the basis that the losing party (the son) would pay the defendant’s costs. However, the defendant’s had failed to follow the specified requirements from Civil Procedure Rule 36.13 regarding part 36 offers. The court decided that although the offer was invalid, they would affect the terms of it. This was because the offer did not advantage the successful party.
This judgement highlights that the court are still satisfied with making the losing party bear the costs in contentious probate matters, even when the successful party has made an error.
Nevertheless, this should not be viewed as an opportunity to evade the requirements of the CPR as each case is viewed on an individual basis.
Conclusion upon Contentious Probate Legal Costs
When considering whether to bring a contentious probate claim, parties should give due consideration to their chances of success. This is because in most matters, the loser will be forced to bear the costs.
Nevertheless, this is not always the case so parties should consider where the causal link lies between the claim and who has caused the issues. Without completing this analysis, the deceased may be the issue and one of the exceptions may apply.
Ultimately, a contentious probate claim can be crucial if a party has been seriously disadvantaged by a will. Though whilst commencing and conducting the claim, parties should remain very mindful.
How can Greener Costs Assist?
Our team of expert Costs Draftsmen and Costs Lawyers can be relied upon to maximise your legal costs recovery in your contentious probate claim.
With twenty years of experience in the costs law industry, our team have the knowledge and expertise to prepare Bills of Costs and Costs Budgets. Moreover, we can conduct your costs negotiations, irrespective of whether you have had a claim made against you or are preserving the estate.
As a digital legal costs service, we can ensure swift results and fast communications. If our clients would like regular updates on the status of their case, we can provide this. This is possible though our management system which consistently tracks the progress of our cases.
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