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Costs of contesting a will: can I afford it?

17 January 2020

If you have been left out of someone’s will, you may have grounds to contest it and claim an interest in the estate. These grounds may include:

  1. there being a lack of due execution;
  2. a lack of testamentary capacity due to ill health;
  3. a lack of knowledge and approval;
  4. the testator having been unduly influenced;
  5. forgery/fraud; and
  6. that either you are the actual owner of assets which have been included in the deceased’s estate or that the deceased had promised those assets would be left to you after they died.

In addition to these grounds, certain categories of individuals may be entitled to bring claims to seek reasonable financial provision from the estate of the deceased under the Inheritance (Provision for Family and Dependants) Act 1975.

It is no secret that litigation can be expensive and many people worry about the potential cost of contesting a will. Bringing claims can be a very long process due to the amount of work involved. This, following on from the death of a loved one, can be a very stressful exercise.

The question that is often asked however is “how do I afford the costs of bringing a claim?”

Who pays to contest a will?

Although the responsibility for paying costs at the conclusion of a claim is always at the discretion of the court, the general rule is that the losing party will be ordered to pay the winning parties’ costs.

In this sort of claim then, were you to successfully challenge a will the presumption is that your costs will be payable by the estate.

On the other hand, if you are unsuccessful, then (subject to one or two exceptions to include where you can show that the person making the will or the persons interested in the residue of the estate have been the cause of the litigation) you will be required to pay not only your own costs but also any costs incurred by the successful party.

This issue must then be carefully considered before you decide to bring a claim as ultimately, if a claim was issued and concluded at a final hearing (which may be as long as 12 to 18 months later) costs may well be many thousands of pounds and can even be in excess of the value of the estate.

In our experience as solicitors, we find that a clear majority of cases do not conclude at trial and instead the parties are able to agree terms of settlement, either by negotiating in correspondence or at a form of alternative dispute resolution such as mediation. We have a strong success rate in helping our clients to resolve their claims on terms which reflect the merits of the case against the costs risks and stress of being involved in litigation.

How can I fund a contested will claim?

We recognise that whilst you may have a strong claim, you may feel very reluctant to challenge the will due to the likely costs involved, and of course the risk of a costs order being made against you in the event that your claim was ultimately unsuccessful.

We are dedicated to ensuring that you have access to our services, and we have therefore developed a range of flexible funding-options to suit our client’s needs and circumstances, alongside the legal system.

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How can we help you?

Should you have any queries about the cost of contesting a will, or wish to discuss whether you think you may have a claim, please do not hesitate to contact a member of our experienced team for a free initial no-obligation chat.

Our inheritance & trust disputes lawyers have substantial experience in challenging the validity of wills, resolving inheritance disputes and contentious probate law. We have members of STEP (Society of Trust and Estate Practitioners) and ACTAPS (the Association of Contentious Trust and Probate Specialists) among our highly-regarded team, and we’re rated for this area of work in the prestigious independent legal guide The Legal 500 UK. 

Associate solicitor Nick Southwell works in the dispute resolution team. He helps individual clients and commercial clients to resolve a wide range of disputes, from contentious will, trust & probate claims through to breach of contract and professional negligence claims. 

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Nick Southwell LLB (Hons)
Associate, solicitor
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