Contentious probate disputes can be emotionally and financially draining. When family members, beneficiaries, or other parties contest a will, questions often arise about who bears the legal costs. One fundamental principle in English law is that “costs follow the event”. While this principle is widely applied, its practical implications in contentious probate cases are complex.
Understanding how costs are awarded, the exceptions to the general rule, and strategies to manage risk is essential for executors, beneficiaries, and legal professionals across England and Wales. This article explains the concept of “costs follow the event” in the context of contentious probate, outlines common scenarios, and provides guidance on mitigating financial exposure.
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What does “costs follow the event” mean?
In English civil law, including probate proceedings, the phrase “costs follow the event” means that the losing party is generally ordered to pay the winning party’s legal costs. In practical terms:
- If you win a probate dispute, you can usually recover at least some of your legal fees from the losing party.
- If you lose, you may be required to pay the other party’s costs in addition to your own.
This principle aims to deter frivolous claims and encourage parties to negotiate or settle disputes where possible.
Application in contentious probate
Contentious probate arises when a will or estate administration is disputed. Common causes of disputes include:
- Challenges to the validity of a will due to lack of testamentary capacity or undue influence
- Allegations of forgery or fraud
- Claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Disputes over executor conduct or mismanagement of the estate
In such cases, courts will usually apply the costs follow the event principle, but there are nuances specific to probate litigation.
- Partial success
In many probate disputes, neither party wins entirely. The court may award costs on a proportional basis, reflecting the extent to which each party succeeded. For example:
- A claimant succeeds in recovering part of the estate but fails on another claim
- A defendant successfully defends certain allegations but loses on others
Courts have discretion to apportion costs fairly in these circumstances, rather than enforcing an all-or-nothing rule.
- Conduct of the parties
Courts may consider the behaviour of the parties when deciding costs. Conduct that can influence cost orders includes:
- Unreasonable delays or obstruction
- Refusing to engage in settlement discussions
- Filing claims or defences without merit
- Failure to disclose documents or provide evidence
Poor conduct can lead to costs sanctions, where a losing party may be ordered to pay a higher proportion of the opponent’s legal fees. Conversely, if both sides act reasonably, costs may be shared or reduced.
- Public policy and vulnerable claimants
In some probate disputes, the court may exercise discretion to protect vulnerable parties. For example:
- Claims brought by elderly or financially dependent beneficiaries may be allowed to proceed even if the likelihood of success is uncertain
- Courts may moderate cost orders where a losing party acted in good faith but faced complex legal issues
This flexibility ensures that the costs follow the event principle does not unfairly penalise vulnerable claimants.
Types of costs in probate disputes
Legal costs in probate disputes can be significant, and it is important to understand what may be recovered under the costs follow the event principle.
- Solicitors’ fees
Costs typically include the fees charged by solicitors for work on the case, including:
- Preparing and filing court documents
- Negotiating settlements or mediating disputes
- Legal research and advice
- Representing clients in court hearings
- Barristers’ fees
Where complex probate disputes require advocacy in the High Court, barristers’ fees are also included in the costs.
- Court fees and disbursements
Other recoverable costs may include:
- Court filing fees
- Expert reports and valuations
- Travel and accommodation related to hearings
- Service of documents
It is important to note that recoverable costs may not cover all expenses. Courts aim to reimburse reasonable and proportionate costs, not necessarily the full amount spent.
How the court assesses costs
When awarding costs, the court considers:
- The reasonableness of the legal work
- The complexity of the dispute
- The conduct of the parties
- Whether costs could have been avoided through negotiation or mediation
Courts often encourage parties to resolve disputes without litigation, recognising that lengthy proceedings increase costs for all involved. Mediation or early settlement discussions can therefore mitigate exposure to adverse cost orders.
Risk management in contentious probate
Beneficiaries and executors can take several steps to manage the risk of cost orders:
- Early legal advice
Seeking advice at the outset can clarify the strength of claims or defences, potentially avoiding unnecessary litigation.
- Consideration of settlement
Negotiating early or using mediation can reduce the risk of being responsible for the other party’s costs. Courts often view unreasonable refusal to settle unfavourably when making cost decisions.
- Proportionality
Legal action should be proportionate to the size and complexity of the estate. Overly ambitious or marginal claims can increase the risk of adverse costs orders.
- Documentation
Maintaining clear records of communications, transactions, and estate administration helps demonstrate reasonableness and can support cost claims if litigation becomes necessary.
- Insurance
Some clients may be able to obtain legal expenses insurance to cover potential costs in probate disputes, reducing personal financial exposure.
How Blackstone Solicitors can assist
At Blackstone Solicitors, we advise clients across England and Wales on the management of contentious probate disputes, including cost risks. Our services include:
- Assessing the strengths and risks of claims or defences
- Advising on the likelihood and potential scale of adverse costs orders
- Negotiating settlements to avoid protracted litigation
- Representing clients in court proceedings and advocating for proportionate cost awards
- Providing guidance on risk management and mitigation strategies for executors and beneficiaries
We combine expertise in probate law, litigation strategy, and financial risk management to protect clients’ interests.
Conclusion
In contentious probate disputes, the principle that “costs follow the event” plays a critical role in determining who bears the financial burden. While winning a claim may allow for recovery of costs, losing can result in a substantial liability for legal fees, barristers’ charges, and other disbursements.
Courts in England and Wales exercise discretion in awarding costs, taking into account the extent of success, conduct of the parties, proportionality, and public policy considerations. Risk management strategies, including early advice, negotiation, and documentation, are essential to minimise exposure.
Beneficiaries, executors, and legal professionals must understand the implications of costs follow the event to make informed decisions in probate litigation. With careful planning and expert guidance, it is possible to protect estate interests while mitigating the financial risks of contentious proceedings.
To read more about our services, please visit:
https://blackstonesolicitorsltd.co.uk/wills-and-inheritance-disputes/
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Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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