2025 is the year the English courts stopped “encouraging” mediation and started “mandating” it. Following the evolution of the Churchill v Merthyr Tydfil ruling, judges are now issuing “Adverse Cost Orders” against winners who refused to sit at the negotiating table. This guide explains why “having a strong case” is no longer a valid excuse to avoid mediation.
The “Winner Loses All” Trap
In 2025, it is possible to win your court case but lose your money. The courts are under immense pressure to clear the probate backlog, and they have lost patience with “principle-driven” litigants who refuse to settle.
Under the October 2024 amendments to CPR 1.1, judges must now promote Alternative Dispute Resolution (ADR) as part of the “Overriding Objective.” In practice, this means that if you refuse an offer to mediate, the judge can penalize you at the end of the trial, even if you proved the Will was a forgery!
The “Unreasonable Refusal” Test
In late 2025, the court uses a strict test to see if you were being difficult. “I don’t like my sister” or “I know I’m right” are not valid reasons to skip mediation. To avoid a penalty, you must prove:
The dispute was genuinely unsuitable (extremely rare in probate).
Mediation would have had no prospect of success (almost impossible to prove).
The costs of mediation were disproportionate (unlikely, as a one-day mediation costs a fraction of a trial).
The 25% Penalty
We are seeing a trend in 2025 where successful parties are having their “recoverable costs” slashed by 25% to 50% as a punishment for failing to mediate. If your legal bill is £100,000, that “no” to mediation could cost you £50,000 out of your own pocket.
Let’s Do This Together
Contesting a will could become an overwhelming experience if not accompanied by expert guidance and support. Our mission is to provide you with all the needed information, support, and authority to get through this journey, with only one goal in mind: Fairness.
To our team, this process is not about winning; it’s about claiming what was yours from the beginning.
Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com
FAQs
1. What if the other side is lying? Why should I mediate with them?
The court’s view is that mediation is the best place to expose those lies without the cost of a full trial. Refusing because the other side is “dishonest” is rarely accepted as a valid excuse by 2025 judges.
2. Can the judge force me to settle?
No. A judge can order you to attend mediation, but they cannot force you to agree to a deal you don’t like. However, by attending, you satisfy the court’s requirement and protect yourself from a “bad” costs order.
3. Is there a “free” mediation service for probate?
Following the 2024/2025 Small Claims Mediation Pilot, money claims under £10,000 get a free one-hour session. For larger inheritance disputes, you must pay for a private mediator, but the cost is usually shared between all parties.
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Frequently asked questions.
Can A Will Be Contested?
Yes, a will can be contested if there are valid legal grounds to challenge its validity.
What are the different Types of Trusts?
There are several types of trusts used in estate planning, each serving a different purpose depending on your goals.
What are Examples of Inheritance Trust disputes?
Breach of Trust: Mismanagement of assets by the trustee.
Trustee Removal: Conflicts leading to the removal of a trustee.
Interpretation: Disagreements over the trust’s legal wording.
Undue Influence: Pressure on the creator to change trust terms.
Financial Claims: Beneficiaries claiming they haven’t received their fair share.
What’s the difference between contesting a will and contentious probate?
Contesting a Will:
This specifically refers to challenging the validity of the will itself.
Common grounds include claims that the deceased lacked mental capacity, the will was forged, or they were under “undue influence” when signing it.
Contentious Probate:
This is a broader term that covers any dispute arising after someone’s death during the administration of the estate.
Do I have to go to court to contest the probate?
No, you do not always have to go to court. Most probate disputes are resolved through:
Mediation: A professional mediator helps both sides reach an agreement without a judge.
Negotiation: Solicitors from both sides negotiate a fair settlement privately.
Settlement Agreements: A legal contract is signed to end the dispute outside of court.
Court as a Last Resort: Litigation is only used if all other attempts to settle fail.
