Who Pays the Legal Fees of Contesting a Will? (2026 Rules)

Who Pays Legal Fees of Contesting a Will? In English law, the general rule is that “costs follow the event”—the loser pays the winner’s legal fees. However, in 2026, the court can deviate from this if the litigation was caused by the testator’s own actions or if the executors acted reasonably in defending a suspicious Will.

Read our complete guide on contesting a will for lack of capacity.

The Default: The “Loser Pays” Principle

The starting point for the High Court in 2026 is that the unsuccessful party must pay the successful party’s costs. This is designed to discourage “speculative” claims.

Important: Even if you win, the court rarely awards 100% of your costs. You typically recover 60% to 80% on the “Standard Basis.” To get 100%, you must prove the other side behaved so poorly that “Indemnity Costs” are warranted.

The Two Famous Exceptions

There are two specific scenarios where the judge might order the Estate to pay everyone’s costs, regardless of who wins:

• Testator’s Fault: If the deceased made the Will so confusing or contradictory that a court case was the only way to settle it.
• Reasonable Doubt: If there were genuine, objective reasons to doubt the testator’s sanity or the Will’s execution, even if the challenge ultimately fails.

Tactical Cost Protection in 2026

The “Part 36” Sting

In 2026, the most powerful cost-management tool is the Part 36 Offer.

If we offer to settle for £100,000 and the other side refuses, but the judge later awards you £100,001, the other side is severely penalized. They will likely be ordered to pay your costs on the higher Indemnity Basis, plus an additional 10% “bonus” on your damages, and penalty interest of up to 8% above the base rate.

Why “No Win No Fee” is the 2026 Standard

Most of our clients at Contest A Will Today use a Conditional Fee Agreement (CFA). This levels the playing field against wealthy executors or large charities.

• The Success Fee: If we win, we charge a “success fee” capped by law.
• The Indemnity: We pair the CFA with ATE insurance. This means that even if the “Loser Pays” rule goes against you, the insurer pays the bill—not you.

The “Conduct” Multiplier: How Behaviour Affects Costs

In 2026, the High Court is increasingly using CPR Part 44 to punish parties who behave unreasonably during the pre-action phase. If an executor refuses to provide a copy of the Will or hides estate accounts for months, the court may order them to pay “Indemnity Costs” regardless of the final outcome.

This is a critical tactical leverage point for us. By documenting every unreasonable delay or “stonewalling” tactic from the other side, we build a “Cost Portfolio” that can be used to threaten the opponent’s personal wealth, often forcing a settlement before a formal claim is even issued.

Qualified One-Way Costs Shifting (QOCS) in Probate?

While QOCS is a standard feature in personal injury law (protecting claimants from paying a defendant’s costs), it does not automatically apply to probate disputes. This makes the 2026 litigation landscape particularly dangerous for the uninsured. However, there is an evolving “quasi-QOCS” approach in cases involving the Inheritance (Provision for Family and Dependants Act 1975.

Judges are becoming more reluctant to strip a “needy” claimant of their entire inheritance just to pay a wealthy estate’s legal fees. We leverage this judicial trend to protect vulnerable clients, arguing that a heavy cost order would defeat the very purpose of the Act.

The Hidden Cost of “Interim Applications”

Many clients don’t realize that a Will contest isn’t just one big bill at the end; it’s often a series of “mini-battles” called interim applications. If we have to go to court to force the removal of a caveat or to compel an executor to disclose a document, the judge will usually make a “Summary Assessment of Costs” right then and there.

In 2026, these orders are often “payable within 14 days.” This creates a cash-flow pressure point; if the other side loses an interim hearing, they must pay us immediately or face their entire defence being struck out.

Security for Costs: A Defensive Shield

If you are contesting a Will from outside the UK (for example, as an expat in Spain or the US), the executors may apply for “Security for Costs.” This is a 2026 procedural tactic where the court orders the claimant to pay a significant sum into a court account upfront to guarantee the defendant’s costs are covered.

Without an ATE Insurance policy that specifically includes a “Deed of Indemnity,” a Security for Costs order can kill a claim instantly. We ensure our insurance partners provide this specific wording to neutralize this common defensive move.

Proportionality vs. Necessity: The Cost Audit

Even if you win and are awarded your costs, the Costs Judge in 2026 will put your solicitor’s bill through a “Proportionality Test.” If the estate is worth £200,000 but the legal fees reached £150,000, the court will likely slash the bill, even if the work was necessary.

At Contest A Will Today, we manage this risk through “Budgeted Litigation.” By sticking to a court-approved Costs Budget (Form H), we ensure that the fees we incur stay within the “recoverable” range, protecting you from a “shortfall” where your win is swallowed by unrecoverable fees.

The Impact of “Mandatory Mediation” on Cost Recovery

As of 2026, the High Court essentially treats mediation as mandatory. If a party “unreasonably refuses” to mediate, the judge can deny them their legal costs even if they win the trial. This is the “ultimate penalty.” We use this as a tool to drag reluctant executors to the negotiating table.

By making a formal, early invitation to mediate, we put the other side in a “lose-lose” position: they either negotiate a fair settlement now or face paying their own six-figure legal bill later, regardless of the verdict.

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. Can the executors use the estate’s money to fight me?

Initially, yes. However, if they lose because they defended a clearly invalid Will, the court can order them to personally reimburse the estate for every penny they spent on legal fees.

2. How much does it actually cost to go to trial?

A full High Court trial in 2026 can cost between £75,000 and £150,000 per side. This is why 95% of our cases settle at mediation for a fraction of that cost.

3. What happens if I lose and I don’t have insurance?

You would be personally liable for your own solicitors’ fees and the other side’s legal costs. This is why we rarely take on a case without an ATE insurance policy in place.