It is exceptionally difficult to predict with any degree of certainty the precise financial costs of contesting a will. Much depends on the nature of the dispute, the number of parties involved, and how protracted matters become.
Ashfords' Disputed Wills and Trusts team appreciates that the cost of obtaining legal advice or pursuing or defending a claim is often of most concern to clients. This brief guide outlines the basic rules about costs and the various funding options that we may be able to offer to you.
Legal Costs - The basic position
In litigation, the general rule on costs is that the losing party pays not only their own legal costs but a contribution towards the winning party’s legal costs too.
There are however three exceptions to the general rule in contentious probate proceedings (that is claims challenging the validity of a will, rather than a claim under the Inheritance (Provision for Family and Dependants) Act 1975) which mean that the court can make an order that the costs are to be paid out of the estate. They are:
- If the testator (the person who made the will) or the residuary beneficiaries of the estate have been the cause of the litigation, the costs should come out of the estate;
- Where neither the testator nor the residuary beneficiaries are to blame for the litigation, but the circumstances required an investigation of the matter, then in these cases there could be no order for costs (so each party pays their own costs); and
- A defendant 'may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.’ If a defendant uses this procedure the court 'will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will’ [Civil Procedure Rules r57.7.5(b)].
Anyone considering whether to contest a will should consider whether their costs will fall within the above categories. In reality many cases are settled by compromise in which case the issue of who pays who's costs is for the parties to agree.
Possible funding options
The alternative ways of funding your probate claim are set out below. Not all will necessarily apply to your case. If you are interested in considering what options are available to you, we can advise you after an initial assessment of your claim.
A. Privately paying
The traditional method of charging is for the time spent on your matter at the lawyer's hourly rate. Although the costs incurred will simply depend on the time spent, we ensure that we provide estimates of the costs of the next likely steps so you are kept fully aware of the costs being incurred.
In certain cases we may be able to give you a fixed price for the work (or parts of the work). We appreciate that some clients prefer the certainty that fixed fees provide as to the costs of the proposed task or step. It may be possible to have a blend of normal hourly rates with fixed fees for certain stages.
Deferred Payment Arrangements
In some cases we are able to offer a Deferred Payment Arrangement. Under a Deferred Payment Arrangement we are able to defer charging for our services until the end of a matter if you have security for the costs, or if it is clear that you will ultimately recover an interest in an estate or trust from which the costs can be met.
"No win no fee" or "No win low fee"
In some cases we are able to provide our services on a "no win no fee" or "no win low fee" basis, also known as Conditional Fee Agreements. It is important to note that only cases that have a reasonable prospect of success will be eligible to be dealt with on this basis. In these cases a success fee is applied in addition to the normal rates, if the matter is successful and no fee (or the low fee) if the matter is unsuccessful. Under the new court rules, a success fee cannot be recovered from the other parties, so these arrangements have become less attractive for clients, who often prefer on of the other funding options.
B. Third Party Funding
'Before the event' legal expenses insurance
You may have insurance that covers legal expenses for certain types of claim. You should check to see whether you have insurance for legal expenses attached to any of your household buildings and contents insurance, motor insurance or even certain bank or credit card services.
'After the event' legal expenses insurance
It may be possible for you to take out an insurance policy to cover your fees and/or any adverse costs order made against you, and therefore to protect you from having to pay costs and disbursements if you become involved in court proceedings and lose. The policy may also cover your own costs and disbursements and indeed the insurance premium itself (in addition to the other side’s costs) should you lose. However, under the new court rules the premium cannot be recovered from the other parties so this is an expense you will incur if successful, as a cost of bringing the claim.
Trade Union funding
Some clients have the benefit of free advice and representation funded by their Trade Union. Trade Unions tend to control who can act on their members’ behalf and have a limited panel of approved solicitors. You would need to check with your union to see if we can act for you.
We are not able to assist you with funding under the Legal Aid Scheme. The Scheme is much more limited in scope than in the past. The rules on Legal Aid expressly exclude from the Scheme, legal services provided in relation to the making of wills and to matters of trust law.
If you would like advice on challenging a Will, or indeed on any other inheritance or trust dispute, please contact our Disputed Wills and Trusts Team on freephone 0800 0931336, or by email firstname.lastname@example.org for a free, no obligation chat to see how we can help you.
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