Who Pays? Debunking the Myth that “The Estate Always Pays”

One of the most dangerous misconceptions in inheritance disputes is the belief that “the estate pays the legal costs regardless of the outcome.” While this was once more common, modern courts follow the general rule of civil litigation: the loser pays. In England and Wales, if you challenge a Will and lose, or if you are an Executor who unreasonably defends a flawed Will, you could be held personally liable for hundreds of thousands of pounds in legal fees. This article explains the “Costs Follow the Event” rule, the rare exceptions where the estate does pay, and how to protect yourself from financial ruin.

The General Rule: Costs Follow the Event

The High Court’s starting position is simple: the unsuccessful party pays the successful party’s costs. If you bring a claim for “Lack of Capacity” and the judge rules the Will is valid, you will not only have to pay your own solicitor, you will likely be ordered to pay around 60% to 80% of the other side’s costs as well. This can easily exceed the value of the inheritance you were fighting for. The days of “free” litigation at the expense of the deceased’s assets are largely over.

The Two “Probate Exceptions”

There are only two narrow scenarios where a Judge might order that costs be paid out of the estate, even if the claimant loses:

• Fault of the Testator: If the deceased’s own actions (e.g., writing a confusing, contradictory Will or hiding assets) were the cause of the litigation.
• Reasonable Investigation: If the circumstances surrounding the Will were so suspicious that it was “reasonable and proper” for the parties to ask the court to investigate, even if the Will ultimately turns out to be valid.

Warning: Courts are becoming increasingly strict. Even if you have a “good reason” to investigate, if you refuse a reasonable settlement offer and insist on a full trial, the judge may still hit you with a costs order.

Executor Liability: The “Neutrality” Trap

Executors often believe they have a “blank check” to use estate funds to fight off challengers. This is a high-risk strategy.

If an Executor takes a “partisan” side (e.g., fighting a claim to protect their own inheritance rather than remaining neutral), they lose their right of indemnity from the estate. If they lose the case, they must pay the legal bills from their own personal bank account, not the estate’s funds.

The Financial Anxiety of Seeking Justice

We understand that for many, the fear of legal costs is the single biggest barrier to seeking justice. It feels fundamentally unfair that to challenge a wrong, you have to gamble your own life savings. This financial pressure is often used by “bullies” in probate disputes to force weaker parties to back down. Our job is to provide you with a clear-eyed assessment of risk so you don’t step into a “cost trap” that you can’t get out of.

Protecting Yourself: CFAs and Insurance

You don’t have to face the risk alone. There are three ways to manage the cost of a probate dispute:

• Conditional Fee Agreements (CFA): Often called “No Win, No Fee.” If you lose, you don’t pay your solicitor’s fees (though you may still be liable for the other side’s fees).
• ATE Insurance: “After the Event” insurance covers the risk of having to pay the other side’s costs if you lose.
• Early Mediation: 95% of our cases settle at mediation. This allows you to walk away with a guaranteed result and capped legal costs, avoiding the “double or nothing” gamble of a courtroom.

The “Part 36” Clock

In litigation, a “Part 36 Offer” is a formal settlement offer with teeth. If the other side makes you an offer and you reject it, but fail to get a better result at trial, you will be penalized heavily on costs, even if you “won” the case! If you receive a settlement offer, you usually have only 21 days to accept it before the cost penalties kick in. Speed and strategy are just as important as the law itself.

For a detailed breakdown of the “Loser Pays” rule and the rare exceptions where the court may order costs to be paid from the estate, see this guide to Probate Costs by Rothley Law which includes analysis of the landmark Kostic v Chaplin case.

A Clear Assessment of Risk

Don’t let the fear of costs stop you from exploring your rights, but don’t walk into a courtroom blind. We provide transparent cost estimates and can discuss funding options like CFAs and ATE insurance. Contact us today for a confidential review—we’ll help you weigh the potential inheritance against the financial risk.

Learn more about No Win, No Fee through our guide: Contesting a Will with No Win, No Fee? Understanding the Cost-Benefit of Pursuing Your Claim

Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com

FAQs

1. Can I use the estate’s money to start a claim?

No. Claimants must fund their own litigation. Only Executors can sometimes access estate funds early, and even then, they do so at the risk of having to pay it back if the court finds they acted unreasonably.

2. How much does a full probate trial cost?

A typical High Court trial for Will validity can cost between £50,000 and £150,000 per side. This is why settling early is almost always the best financial decision.

3. Does “No Win, No Fee” mean I pay nothing?

Not exactly. You usually still have to pay “disbursements” (like court fees and expert report fees), and if you win, the solicitor will take a “success fee” from your inheritance.