Challenging a will can seem like the only way to protect what you believe is your rightful inheritance. Whether it involves allegations of undue influence, lack of testamentary capacity, or undue benefit to certain beneficiaries, disputing a will is a serious step. However, in England and Wales, pursuing a weak or unmeritorious claim can carry significant financial risks.
The principle that “costs follow the event” means that losing a will challenge often leaves claimants liable not only for their own legal fees but also for those of the opposing parties. Understanding the potential consequences before initiating proceedings is essential. This article explores the financial implications of pursuing a weak will challenge, the factors courts consider, and strategies to manage risk.
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Understanding the financial risks
Challenging a will is not simply about whether you win or lose. The financial exposure can be considerable and includes:
- Solicitors’ and barristers’ fees – Complex will disputes often require substantial legal work, including drafting pleadings, reviewing evidence, and court advocacy.
- Court fees and disbursements – Filing fees, expert reports, valuations, and other procedural costs add up quickly.
- Adverse costs orders – If the claim is unsuccessful, the court may order the losing party to pay the legal costs of the winning side, which can exceed £50,000 in complex cases.
- Personal liability – Unlike ordinary debts, costs in litigation cannot be discharged through insolvency without potential consequences; they are enforceable against the claimant’s assets.
These risks are particularly acute in contentious probate cases, where estates may already be diminished or the issues are emotionally charged.
What makes a will challenge “weak”?
Not every claim is strong enough to justify litigation. Common factors that may render a claim weak include:
- Lack of evidence – Allegations of undue influence, forgery, or lack of capacity require compelling proof. Without strong supporting documentation or witness testimony, a claim may fail.
- Minor deviations from fairness – Courts often uphold testamentary freedom, and minor perceived inequities may not amount to legal grounds for challenge.
- Time limitations – Claims brought long after the testator’s death may face hurdles under statutory time limits or doctrines like laches, which penalise unnecessary delay.
- Unclear entitlement – Only certain parties can bring a will challenge. For example, adult children, spouses, or dependants have statutory standing, but distant relatives often do not.
A weak claim increases the likelihood of being ordered to pay the other party’s costs, compounding financial exposure.
How courts assess costs in will disputes
In England and Wales, the courts generally follow the principle that “costs follow the event”. This means the losing party usually pays the winner’s legal costs. However, the courts also have discretion and consider:
- Reasonableness of the claim – If a claimant has a reasonable basis, even if ultimately unsuccessful, the court may reduce adverse cost liability.
- Conduct of the parties – Courts scrutinise whether parties acted unreasonably, delayed proceedings, or refused to negotiate, which can increase cost awards.
- Proportionality – Costs must be proportionate to the value of the estate and the complexity of the claim. Courts may reduce or adjust fees that are considered excessive.
- Partial success – If a claimant succeeds on some points but fails on others, costs may be apportioned, with each party covering a proportion of the other’s expenses.
Understanding these principles is crucial to assessing whether pursuing a claim is financially viable.
Case study examples
Several cases illustrate the risks of pursuing weak challenges:
- Claim dismissed due to lack of evidence – A child challenged a will claiming undue influence by a step-parent. Medical and witness evidence did not support the allegation. The claimant was ordered to pay over £60,000 in costs to the executors.
- Minor inequity not sufficient – A beneficiary argued the testator should have left them a larger share. The court upheld the will, emphasising testamentary freedom. Costs awarded exceeded the estate’s residual value, leaving the claimant liable personally.
- Delay and laches – A claim brought several years after the testator’s death failed. The court criticised the delay, imposing costs to reflect the unreasonable timing of the claim.
These examples highlight that pursuing a weak claim can magnify financial exposure far beyond the initial legal fees.
Managing the financial risks
There are several strategies to manage the financial risks of challenging a will:
- Seek early legal advice
Before initiating proceedings, consulting a solicitor experienced in contentious probate is essential. They can assess the strength of your claim, estimate potential costs, and advise on whether litigation is justified.
- Consider alternative dispute resolution
Negotiation, mediation, or arbitration may resolve disputes without the expense and risk of court proceedings. Courts encourage early settlement, and participating in mediation can also be taken into account when assessing costs.
- Assess evidence carefully
Ensure there is clear and compelling evidence supporting your allegations. Weak claims with limited proof are far more likely to result in adverse costs orders.
- Understand cost liability
Be aware that costs may not be capped. Complex High Court litigation can generate costs well beyond the initial estimate, and parties should prepare financially for this eventuality.
- Legal expenses insurance
In some circumstances, legal expenses insurance may cover part of the costs of challenging a will, reducing personal financial exposure.
How Blackstone Solicitors can assist
At Blackstone Solicitors, we guide clients across England and Wales on contentious probate disputes, helping them assess risks and protect their interests. Our services include:
- Evaluating the merits of a will challenge before proceedings are issued
- Advising on potential cost exposure and risk management strategies
- Negotiating settlements or participating in mediation to avoid unnecessary litigation
- Representing clients in High Court proceedings when litigation is unavoidable
- Providing clear, strategic guidance on evidence gathering and procedural steps
Our approach balances legal expertise with practical financial considerations, ensuring clients make informed decisions.
Conclusion
Challenging a will can be a necessary step to protect legitimate interests, but pursuing a weak claim carries serious financial risks. In England and Wales, losing parties are often responsible for their own costs and those of the opposing side, which can far exceed the potential gain from the estate.
Understanding the strength of a claim, seeking early legal advice, and considering alternative dispute resolution are critical steps to manage exposure. Executors, beneficiaries, and potential claimants must carefully weigh the costs and benefits before embarking on litigation.
With the right legal guidance, it is possible to protect your interests while minimising financial risk, ensuring that any challenge to a will is both justified and strategic.
To read more about our services, please visit:
https://blackstonesolicitorsltd.co.uk/wills-and-inheritance-disputes/
How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of Wills and Probate. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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