Who pays when Challenging a Will?

Posted on November 15, 2024

Challenging a will is a serious decision that should only be taken after obtaining legal advice and once you are aware of the likely legal costs that could be incurred.

Often, if you are considering challenging or contesting a will, you will need to be prepared to pay your own legal costs and you may be required to pay these upfront, depending on the agreement with the solicitor.

Whatever the financial arrangement with your Contentious Probate solicitor, if the court proceedings are necessary, at the conclusion of the claim, the general rule is that the losing party pays the winning party’s legal costs.

Reasons for Challenging a Will

Simply being unhappy with the outcome of a will is not grounds to challenge it. There are specific grounds on which a will may be contested, which include:

The will was not properly signed or witnessed (Lack of due Execution)
The person making the will (‘the Testator’) did not have capacity to make the will (Lack of Testamentary capacity),
The will was made as a result of someone else influencing the Testator (Undue Influence)
The will is a forgery.

If is not enough to simply allege that the Testator did not have capacity to make the will or was unduly influenced, you will need to produce evidence to support of your allegations, such as providing expert medical evidence as to the Testator capacity.

It is often a cause for concern where a will has been changed shortly before the Testator’s death and certain family members / loved ones are suddenly disinherited with just one person benefitting from the will. This could be a sign that the Testator had been unduly influenced into making the new will.

How to challenge a will in England and Wales

The first step to challenging a will is to obtain legal advice and to speak to a Contentious Probate solicitor. They can advise you whether your concerns potentially give you grounds to bring a claim. They will explain the first steps which will need to be taken when contesting a will and the likely costs you will incur.

It is easier to contest a will before any of the estate has been distributed which is why if you are considering challenging a will you should act quickly and seek advice. You may need to consider entering a Caveat with the Probate Registry to prevent a Grant of Probate being obtained. The Grant of Probate is the legal authority for the Executor(s) named in the will to start administering the estate, gathering in the assets and ultimately distributing the assets to the named beneficiaries.

Cost of Challenging a Will

Often people think that the legal fees can be paid out of the estate at the end of the claim, however you will need to arrange the funding of your legal costs with your solicitor when you instruct them to act on your behalf. This may mean that you fund the case privately (as you go) or your solicitors may agree to enter into a Conditional Fee Agreement (No Win No Fee) or even agree to defer the payment of the costs until the case concludes.

If Court proceedings are issued, the usual order at the conclusion of the case is that the losing party will pay the winning party’s legal costs, and this will be in addition to their own legal costs. If a claim is issued and goes all the way to trial, the legal costs for each party can be substantial and potentially cost over £50,000. Challenging a will can be costly.

Before you embark on court proceedings, you will want to have obtained all evidence in support of your claim. By ensuring that you gather all the necessary evidence at the start of a claim, this can help to resolve disputes quickly and without huge expense.

Mediation Vs Challenging a Will in Court

Often Will dispute cases can be resolved without the need for court proceedings and parties are encouraged to try and resolve the dispute through a form of Alternative Dispute Resolution, such as mediation. Where a settlement is achieved, the parties are free to decide who pays whose costs and how much.

It is therefore always in the interest of all the parties to the claim to attempt to resolve matters without the need for court proceedings and often cases are settled either through written offers or as a result of a successful mediation. It is no surprise that only 2% of cases are decided by a trial.

Laura Pracy, Contentious Probate Solicitor and Head of Inheritance and Will Disputes, said:

“People with legitimate reasons for contesting a will should not be put off by potential legal costs, but parties should always be willing to engage in some form of Alternative Dispute Resolution (ADR), such as a mediation to try and reach a settlement to the dispute as this is often a much quicker and more cost-effective way of settling the dispute than going to trial.”

How can we help?

For legal advice on challenging a Will contact our specialist Contentious Probate Solicitors on 0161 785 3500 or email contentiousprobate@pearsonlegal.co.uk.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.