How to contest a will?
There is a strong awareness that a deceased's wishes may be disputed even when the deceased left a will. There are several grounds to contest a will, including:
- lack of due execution;
- lack of testamentary capacity;
- lack of knowledge and approval;
- undue influence; and
- forgery/fraud.
In addition to the above grounds, the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of individuals to seek reasonable financial provision from the estate of the deceased.
The likely costs to contest a will
It is well known that any litigation is expensive and contesting a will is no different. If anything, inheritance claims can be more expensive than other forms of litigation due to the nature of the claim and the amount of work and investigation involved.
Inheritance claims are a form of hostile litigation and the two general cost rules apply, namely:
- costs are in the discretion of the court; and
- the losing party may be ordered to pay the winning parties costs.
It is often misconceived that costs in inheritance claims automatically come out of the estate. This is not necessarily true as in the first instance the general rule is that the unsuccessful party will pay the costs of the successful party. However, there are two long-established exceptions to this general rule, and they are:
- If the testator (person who made the will) or the persons interested in the residue of the estate have been the cause of the litigation, the costs of unsuccessfully opposing probate may be borne by the estate; and
- If the circumstances of the case are such that it was reasonable for there to be an investigation concerning the will, then the parties' costs should be borne by those who had incurred them.
The above-established exceptions come from the decision in the High Court cases of Spiers v English [1907] and these principles were later confirmed in the case of Costic v Chaplain [2007] and applied in Re Ritchie [2009].
Accordingly, any party considering whether to contest a will should not assume that the estate will bear their costs. As previously stated, inheritance claims can be more expensive than other forms of litigation, and in some instances, the costs incurred may be in excess of the value of the estate. Any party considering whether to contest a will should consider whether their costs will fall within the two exceptions to the general rule. Should the nature of their claim not fall within the two exceptions, then the party challenging the will should weigh the costs and risks involved.
To proceed with an inheritance claim to a final hearing (which usually takes 12 to 18 months from when the claim is issued), costs may well be tens of thousands of pounds. Statistically, around 95% of cases issued do not proceed to trial, and the parties agree terms of settlement between themselves. It is therefore important to obtain legal advice from an early stage on the issue of costs so that a party's position can be protected. There are several ways in which such claims can be funded.
How much does it actually cost to contest a will?
The amount it will cost to contest a will depends on when the will dispute settles. If, for example, following an initial letter, the opponent accepts that the will is invalid, the likely legal costs could be in the region of £500 to £1,500 plus VAT.
If, however, an initial letter does not settle the dispute, the parties may then decide to engage in mediation or some other form of negotiation. The cost of progressing to this stage is often in the region of £7,500 to £10,000 plus VAT.
Thereafter, if a mediation and/or negotiation is not successful and Court proceedings are necessary, costs to start the claim will escalate to a sum in the region of £15,000 to £20,000 plus VAT. If the matter proceeds to a final trial, costs can escalate to sums in excess of £150,000 plus VAT. The most expensive part of any litigation is the trial.
To put the above into perspective, approximately 50% of cases settle before proceedings are issued and only around 2% of cases proceed to a final trial. It is important in all will disputes that the issues are identified at an early stage and all parties engage in mediation or negotiation in order to try and resolve matters at the least cost. It is therefore important that a qualified and experienced solicitor is instructed at the outset who specialises in contesting wills.
Who pays to contest a will?
Before embarking on contesting a will and instructing a solicitor, you should first check any insurance you may have which may cover legal expenses. For example, some bank cards include such insurance. However, if you do not have legal expenses insurance, and the prospects of succeeding with your case are good, you should enquire with your solicitor as to whether they will act on your behalf pursuant to a Conditional Fee Agreement (more commonly known as a no win no fee agreement). Please be aware whilst such agreements cover your own costs, they do not cover the opponent’s costs, if you lose the claim. If, you are not able to fund your claim by either legal expenses insurance or a Conditional Fee Agreement, a solicitor will often ask for his/her fees to be paid on an hourly basis.
Whenever contesting a will, if your claim proceeds to trial, the standard order is that the winning party has their reasonable costs paid by the losing party. You should consider 'After the Event Insurance' with any solicitor that you instruct to cover your opponent’s costs, in the event that their claim is not successful.
It is important to seek legal advice from the outset to try and minimise any pitfalls regarding costs involved in contesting a will, as it can be very expensive.
Why is it expensive to contest a will?
Contesting a will can be very complex requiring expert evidence. If it is to be argued that the deceased lacked capacity when executing the will, it is inevitable that medical expert reports will be required. If fraud is alleged, a forensic handwriting expert is often required. Disputes regarding the value of the estate often occur which require surveyor’s reports. Further, in most disputes involving contesting a will, emotions run high and parties inevitably do not see “eye to eye”. This can cause disputes to proceed to Court, which is the most expensive part of litigation. If Court proceedings are issued, it is standard practice for a barrister to become involved and to draft the necessary Court papers and to represent a client at any future hearings. Often it is prudent to seek a barrister’s input in these types of cases, even before a claim is issued at Court.
In order to try and minimise costs, it is very important to instruct a solicitor who specialises in contesting a will at the outset of a claim in order that the issues can be identified and the parties can seek mediation or negotiation at the first possible opportunity.
Can I get legal aid to contest a will?
Legal aid can help meet the costs of legal advice, mediation and representation in a court or tribunal if people cannot afford to pay for legal costs and the case is eligible for legal aid. However, not all legal advice is covered by the legal aid scheme and unfortunately, these sorts of cases are not eligible. That said, if there are good prospects of success it is possible to instruct solicitors on a 'pay at end' basis (i.e. once you have received inheritance) or using 'no win no fee' agreements if funding is a problem. It may also be possible to claim on existing insurance policies for the cost of legal advice or obtain insurance.
Defending a contested will the UK
The validity of a will can be challenged on several grounds in England and Wales and the people who benefit under the terms of the will often want to defend such a challenge to protect their inheritance. Their success very much depends on thoroughly investigating and assessing the validity of the will. This can be an expensive piece of litigation that could have serious financial consequences. It is therefore sensible to seek advice on the issue of costs from the outset to protect your position.
The executors or personal representatives of the will may also become involved in a claim to contest a will. Executors and personal representatives should approach such claims in a different way to beneficiaries who wish to protect their inheritance and as such, should seek specialist legal advice as soon as possible after becoming aware that a will that they are appointed under may be challenged. This is particularly important in light of the recent case of Kenig v Thomson Snell & Passmore [2023] in which the Court decided that the beneficiaries of an estate could challenge the amount of costs incurred by the executor’s solicitors in administering the estate, even though the executor had not done so. Executors and personal representatives should therefore be cautious as this approach could be extended to the costs associated with a will being contested.
Costs to defend a contested will
Disputes relating to contested wills, whether as a claimant or as a defendant, can be expensive resulting in a legal spend of tens of thousands of pounds. Most do not reach trial but, if they do, the legal fees can easily reach £150,000 – £200,000 plus VAT per party. Sometimes, the costs involved may even exceed the value of the estate in question. There is a common misconception that the costs of a claim will automatically come out of the estate and this is not necessarily correct. The judge has a discretion and the usual rule follows that the losing party pays the successful party’s costs. It is therefore sensible to seek advice on the issue of costs from the outset to protect your position.
