Contentious Probate Costs – Who Pays?

And Can a Costs Draftsman Assist in Recovering Costs and Minimising the Impact upon the Estate?

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What Is Contentious Probate?

Contentious Probate costs arise when there is a dispute as to a Deceased person’s Will. It can involve disputing over the validity of the said Will or its interpretation. It is usually a disagreement as to how an Estate is to be distributed or managed by one or more of the interested parties. 

Rules in relation to Contentious Probate Costs

The costs of bringing probate disputes in relation to a Deceased’s Estate can vary and be hard to predict. The level of costs which will be incurred can depend on numerous factors such as the amount of people involved in the dispute and the nature of the dispute itself.   

On the outset of the case, each party is responsible for their own costs throughout the course of the litigation. Following settlement of the case, the Judge in question decides which party will bear the burden of the costs incurred to run the case. 

While some people may think the costs of bringing a case for costs in contentious probate forward will be paid out of the Estate via a Beddoe Order, this is not usually the case. The usual rule of thumb is that the losing party pays the costs incurred by all parties involved. However, there can be exceptions to this rule. 

The exceptions to this general rule include: 

  1.  If it is necessary for the Court to get involved in determining the meaning of the Will due to the contents of the Will causing confusion or being ambiguous;
  2. If contentious probate proceedings or litigation is caused by the person who created the Will or by the people interested in the residue of the Estate; 

If within the Defendant’s Defence, notice is given that the Defendant merely intends to prove the deceased’s Will (this is usually done on what is known as a ‘solemn form’), then the  must intend to cross-examine the witnesses available in support of the Will. The opposing party must also have reasonable grounds to oppose the Will. 

The first and second exceptions arise from the case of Spiers v English [1907] P 122.  

The exceptions mentioned above come from the fact that the Court takes up a special investigative role in Probate claims. The purpose of this role being taken up by the Court is mainly in relation to clarifying and explaining the wishes of the Deceased. It is therefore important that a balance is found in ensuring reasonable steps are taken to establish the last wishes of the deceased and in pursuing the matter at all costs. The downfall of the latter is that it could expose the parties to greater costs risks. 


What is the Current Common Law Position on the Costs Rules in Relation to Contentious Probate proceedings? 


The recent case of James v James and Ors [2018] EWHC 242 (Ch) addressed the importance of offers to settle (or Part 36 Offers) in contentious probate proceedings. 

The facts of the case involved a son (the Claimant) who brought two separate claims in relation to his Father’s Estate following his death. The Defendants in the case were the Deceased’s wife and daughters. They defended the claim and brought a counter claim forward. The Claimant was unsuccessful in his case.  

The main fact to focus on in this case, which relates to the costs, is that the Defendants’ proposed a Part 36 Offer to settle during the course of the proceedings. The offer stated that the losing party (the Claimant in this instance) was to be liable to pay the Defendants’ costs of the claims and counterclaims. However, the terms set out in the Part 36 Offer departed from the wording of CPR 36.13(1) concerning the period in which the Claimant was to be liable for the Defendants’ costs. 

It was held by the Court that the offer was not a valid Part 36 Offer. The reason for this finding was that the wording of the Part 36 Offer was not in line with the mandatory requirements of CPR Part 36. Consequently, the Court could consider this when exercising its discretion on costs; however, it was not an offer to which the more advantageous consequences of Part 36 applied and thus effected the costs ordered.

The lesson to be learnt from this case is mainly that the ‘loser pays’ principle is still one which is abided by. Furthermore, it is important to ensure the wording of any Part 36 Offer is compliant with CPR 36 in order to benefit from the consequences which come with Part 36 Offers.


How can ARC Costs Assist?

As independent Costs Lawyers and Costs Draftsman providing legal advice, we act for both receiving parties in maximising their legal costs recovery, and also for paying parties in reducing the amount of any costs claim brought against them or to preserve the Estate. We are adept in preparing Bills of Costs and conducting negotiations on your behalf, as well as preparing Points of Dispute or Points of Reply. Should you require assistance in respect of any Contentious Probate costs dispute, please contact us via the live chat facility below, via email at, or call one of our costs experts on on 01204 397302.




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