At Ives & Co Solicitors, we specialise in will disputes, contentious probate and estate administration, supporting clients through complex inheritance disputes with clear, strategic advice. When disagreements arise after someone passes away, one of the most important questions is: who pays the legal costs?
Recent sector commentary has highlighted growing concern about litigation funding and the circumstances in which costs can properly be paid from an estate.
The General Rule on Legal Costs
In most civil disputes, the standard rule applies: The losing party usually pays the winning party’s legal costs. However, probate disputes can be more nuanced. The court has discretion, and costs do not automatically come from the estate.
1 – When Can Costs Be Paid from the Estate?
There are limited situations where the court may allow legal costs to be taken from estate funds.
✔️ Where the Deceased Caused the Dispute
If the will is unclear, poorly drafted, or creates genuine confusion, the court may decide that the dispute was effectively caused by the deceased — meaning costs may be payable from the estate.
✔️ Where There Was a Reasonable Investigation
If there were legitimate concerns about capacity, undue influence, or fraud, and parties acted reasonably in investigating those concerns, the court may permit costs to come from the estate.
✔️ Neutral Applications by Executors
Executors sometimes apply to the court for guidance on administering the estate. Where they act properly and neutrally, their costs are often recoverable from the estate.
2 – When Are Costs Unlikely to Come from the Estate?
Courts are increasingly cautious about allowing estate funds to be depleted by litigation. Costs are less likely to be paid from the estate where:
❌ A claim is speculative or weak
❌ A party behaves unreasonably
❌ The dispute is driven by personal conflict rather than legal merit
In such cases, the unsuccessful party may face a personal costs order.
3 – How Is Probate Litigation Funded?
Litigation can be expensive, and funding options vary depending on the case:
➡️ Private funding
➡️ Conditional fee agreements (in suitable cases)
➡️ After-the-event insurance
➡️ Third-party litigation funding
Each route carries financial risk and should be carefully assessed.
4 – The Financial Risk to Beneficiaries
It is important to understand the potential impact:
➡️ If costs come from the estate, the overall inheritance reduces.
➡️ If a party loses, they may be personally liable for significant legal costs.
➡️ Even successful claims can substantially diminish estate value.
Litigation should therefore be approached with careful consideration of both legal merit and financial exposure.
5 – A Changing Approach by the Courts
Historically, probate disputes were sometimes treated as exceptions to normal cost rules. However, courts are increasingly applying standard civil cost principles more strictly. This means:
➡️ Strong evidence is essential.
➡️ Unreasonable conduct can lead to adverse cost orders.
➡️ Estate funds are not a guaranteed source of payment.
Key Takeaway
Legal costs in probate disputes do not automatically come from the estate. While courts may allow estate funds to cover costs in limited and justified circumstances, the general trend is towards applying standard civil cost rules. Before pursuing or defending a claim, it is crucial to assess the strength of the case, the available funding options, and the potential financial risk involved.
