One of the most common questions we hear is, ‘What does it cost to contest a will?’
Factors which impact on legal costs
It is very difficult, particularly at the outset, to estimate with certainty how much it will cost to contest a will. There are a number of factors which impact on the legal fees, such as:
- the number of parties;
- the number of witnesses to be called;
- whether expert evidence is needed;
- whether court proceedings have to be issued;
- how fiercely the case is defended;
- whether the case goes all the way to a contested trial; and
- the complexity of the legal issues.
Because every case is different the legal fees vary. There is no set figure or fixed amount that is applicable in every instance. Obviously a straightforward dispute that is quickly settled out of court will be considerably cheaper than a complex dispute that goes all the way to a contested trial. The range is vast, running from perhaps a few hundred pounds, through to a few hundred thousand pounds.
It’s also important to bear in mind that legal costs are often ‘front-loaded’ when a will is contested, because key work has to be carried out at a very early stage. This means that costs can rise quickly from the start of a case and, in turn, this can have an impact on the potential for an out of court settlement being reached.
The type of legal action is another factor. There may be a number of different options to consider. For instance a claim under the Inheritance (Provision for Family and Dependants) Act 1975 might be more cost-effective than contesting the validity of a will. Alternatively, the key issue in the dispute may be more about the suitability of someone acting as executor, the manner in which the estate is being administered, or the way in which the terms of the will are interpreted, rather than contesting the validity of the will itself.
The usual costs rule
The usual costs rule is that the loser pays the winner’s costs. And although this rule only applies once court proceedings have been issued, it is nevertheless a fundamental consideration. It is essential that parties think about their opponent’s legal costs as well as their own.
There are some exceptions to this general rule which can potentially apply when you contest a will. There are other costs orders the court can make, such as each party paying their own costs, or the estate paying some or all of the costs.
The circumstances in which these exceptions might apply include:
(i) where the will is ambiguous or causes confusion and it is necessary for the court to step in to determine its meaning and effect; or
(ii) where the conduct of the person who made the Will caused the dispute.
These exceptions are based upon the court’s special inquisitorial role in contentious probate claims, where the court’s function is to give effect to the true last wishes of the deceased.
Contesting a will therefore needs to be done with care, after serious thought and consideration has gone into the risks and potential consequences of such action, and only after taking expert legal advice.
No Win, No Fee
Where the merits of a case are good we are usually willing to work on a No Win, No Fee basis.
No Win, No Fee funding can be invaluable to parties to a will dispute who do not have the resources to fund an open-ended legal challenge. No Win, No Fee enables people to contest a will even when their means are limited and the costs of taking a claim to trial could be as high as £60,000 – £90,000, or more.
There are 2 types of No Win, No Fee funding that we offer:
1. Conditional Fee Agreements; and
2. Damages Based Agreements.
In both cases you do not have to pay us for the work we carry out if you do not win your case.
If you win then you pay a success fee.
We are always happy to consider whether a case is suitable for No Win, No Fee funding. We will consider which type of funding is available and explain how the arrangement works. We make no charge for carrying out an assessment.
Investigatory work on a Limited Fee basis
In order to assess whether a contested will case is strong enough for us to work on a No Win, No Fee basis, a certain amount of ground work must first be carried out. This work may have already been undertaken by you, or it may be work that has been carried out by another solicitor. Either way we will be happy to consider it.
We may not be able to consider the case for No Win, No Fee funding until all the information we need has been obtained.
We will tell you if any crucial information is missing and if you need help with obtaining this information then we offer a Limited Fee service.
The preliminary work we commonly carry out on behalf of people wishing to contest a will includes:
- obtaining the file of the solicitor who prepared the disputed will;
- obtaining a Larke v Nugus statement from the solicitor who prepared the will;
- entering a caveat to prevent the contested will from being administered;
- obtaining the deceased’s medical and care records where their mental capacity is in question;
- speaking to the people who witnessed the disputed will;
- clarifying facts or evidence by corresponding with the opponent;
- seeking a preliminary report from a handwriting expert where fraud is alleged; and
- seeking a preliminary report from the deceased’s GP where their capacity is being challenged.
Every contested will claim is different and the steps to be taken need to be considered on a case-by-case basis.
We will be happy to review your case free of charge. If there is sufficient information to enable us to make a decision we will tell you if it is a case we can deal with on a No Win, No Fee basis. If further information is required and you would like us to help you obtain it then we will provide you with an estimate of the legal costs that are likely to be involved, setting a limit on those costs so that your liability is not open ended. Once we have all the information we require then we can assess whether we are able to proceed with your contested will claim on a No Win, No Fee basis. At that point we will also be better placed to begin to answer your question, ‘What does it cost to contest a will?’
Free legal helpline
You can call our free legal helpline on freephone 0333 888 0407 or contact us by email and we will provide you with an initial case assessment and your options for funding the legal costs that are likely to arise.