Costs of contesting a will
Contesting a will can, unfortunately, be a costly process. Because of the variation in work required from case to case, it’s hard to give an average cost of contesting a will.
As is usual with litigation, the court normally decides who bears the cost – although it is most likely that the losing party will pay for the winning party’s costs (in addition to their own). Because of this, it can’t be assumed that costs will be met by the estate. There are a couple of circumstances when the court may make an alternative order as to who pays what:
- If the person who made the will, or the people who are interested in what’s left of the estate, are found to have caused the legal challenge, then the costs may be taken from what is left of the estate.
- If the court thinks that an investigation into the will, then each party will cover their own costs.
Because of the potential costs, it’s crucial to assess the merits of a claim and the chances of proving successful before any action is undertaken.
But, how much does it actually cost to contest a will?
The amount it will cost to contest a will depends on how quickly the dispute settles. For example, if following an initial letter, it is accepted that the will is invalid, the likely legal costs will be in the region of £500 to £1,500 plus VAT. However, if, an initial letter does not settle the dispute; the parties should then engage in mediation or some other form of without prejudice conversations. The cost of progressing to this stage is often in the region of £7,500 to £10,000 plus VAT.
After that, if a mediation or without prejudice conversation is not successful, the next step would be court proceedings. The costs of the claim would escalate to a sum in the region of £15,000 to £20,000 plus VAT. If the matter proceeds to a final trial, costs can increase to amounts over £100,000. The most expensive part of any litigation is the trial.
However, to put the above into perspective, approximately 50% of cases settle before proceedings are issued, and only around 2% of cases proceed to a final trial. It is essential in all inheritance disputes that the issues are identified at an early stage, and all parties engage in mediation or without prejudice conversations to try and resolve matters to reduce the costs. It is therefore important that an experienced and qualified solicitor is instructed at the outset who specialises in contesting wills.
Who pays to contest a will?
Before embarking on contesting a will and instructing a solicitor, you should first check any insurance you may have which may cover legal expenses. For example, some bank cards and home insurance include such insurance. If you do not have legal expenses insurance, you should speak to your solicitor as to whether they will act on your behalf using a conditional fee agreement (more commonly known as a no win no fee agreement). Please be aware while such agreements cover your own costs, they do not include the opponent’s costs, if you lose the claim. If you are not able to fund your claim by either legal expenses insurance or a conditional fee agreement, a solicitor will often ask for their fees to be paid on an hourly basis.
Whenever contesting a will, if your claim proceeds to trial, the standard order is that the winning party has their reasonable costs paid by the losing party. At the outset of any case, a solicitor should advise their client about after the event insurance to cover the opponent’s costs, if their claim is not successful.
It is important to seek legal advice from the outset to try and minimise any pitfalls regarding costs involved in contesting a will, as it can be costly.
Why is it expensive to contest a will?
Contesting a will can be a very complicated process requiring expert evidence. For example, if the deceased lacked mental capacity when executing the will, medical expert reports will inevitably be needed. If fraud is alleged, a forensic handwriting expert is often required. Inheritance disputes regarding the value of the estate often occur which require surveyor’s reports. Further, in most disputes involving contesting a will, emotions are often running high, and parties inevitably do not see “eye to eye”. This can cause will disputes to proceed to court, which is the most expensive part of litigation. If court proceedings are issued, it is standard practice for a barrister to become involved and to draft the necessary court papers and to represent a client at any future hearings.
To try and minimise costs, it is imperative to instruct a solicitor who specialises in contentious probate at the outset of a claim so that the issues can be identified and the parties can seek mediation at the first possible opportunity.
Can I get legal aid to contest a will?
Legal aid can help meet the costs of legal advice, mediation and representation in a court or tribunal if people cannot afford to pay for legal fees, and the case is eligible for legal aid. However, not all legal advice is covered by the legal aid scheme, and unfortunately, these sorts of cases are not eligible. That said, if there are reasonable prospects of success, it is possible to instruct solicitors on a ‘pay at the end’ basis (i.e. from inheritance) or using ‘no win no fee’ agreements if funding is a problem. It may also be possible to claim on existing insurance policies for the cost of legal advice or obtain insurance.