Challenges to the validity of wills are becoming increasingly common. A frequent misconception is that the legal costs for such disputes are paid from the estate's assets, regardless of the outcome of the case. In reality, this is rarely the case.
As with all claims, the court has the discretion to decide which party should pay the costs and in what proportion. This determination depends on the specific facts of the case and the reasonableness of each party’s behaviour throughout the dispute.
In most probate disputes, the usual rule that “costs follow the event” applies. This means the losing party is typically ordered to pay a significant portion of the winning party’s costs from their own assets, in addition to paying their own legal fees.
While that is the starting point and the usual default position, there are two important exceptions for probate cases:
- The testator or a residuary beneficiary Is the real cause of the dispute
If the testator’s actions created confusion or uncertainty, the court may order that costs be paid from the estate. Such cases might involve conflicting wills, disorganized paperwork, or a testator with untreated mental health issues. It is not often that such an order is made. - Reasonable grounds to investigate a will’s validity
If a party reasonably questions the validity of a will, the court may make no order as to costs, meaning neither side can recover their costs from the other or from the estate.
These exceptions exist because the court has an inquisitorial role in ensuring only valid wills are admitted to probate, serving the public interest by enabling reasonable suspicions about a will’s validity to be investigated.
Even if one of these exceptions applies, it might not cover the entire case. Once a dispute evolves into “ordinary hostile litigation,” the usual rule—that the loser pays the winner’s costs—will generally resume.
Recent Case: Tucker v. Felton-Page [2025] EWHC 530 (Ch)
A High Court case, Tucker v. Felton-Page, recently explored these exceptions. The dispute centred on a 2013 will, challenged on the grounds of (amongst other things) testamentary capacity. The claimant, the primary beneficiary of the 2013 will, sought to admit the will to probate in solemn form (which meant that the court had to declare it to be valid before the grant of probate could be issued). The first defendant, the testator’s niece, alleged the testator lacked capacity, which would mean that the estate would pass under an earlier will from 2006 under which she was a beneficiary.
Both parties sought expert opinions in the issue of capacity. Initially, the claimant’s expert supported the claimant’s case that the testator did have capacity to make a will in 2013. However, upon reviewing additional evidence, he revised his opinion to conclude that the testator lacked capacity in 2013. A joint expert report then confirmed this finding, leaving the claimant with no choice but to capitulate and accept that the 2013 will was not valid.
There was then a battle on costs. The claimant argued that the second exemption from the usual “costs follow the event rule” applied and that there should therefore be no order made as to costs. The judge ruled as follows:
- Initial investigation phase
Up until February 2023, the claimant had reasonable grounds to investigate the 2013 will’s validity. The will appeared sound—drafted by solicitors without concerns, backed by a GP’s assessment, and initially supported by the claimant’s own expert. For this period, the court made no order as to costs and so the successful defendant could not recover her costs from the claimant up to that date.
Up until February 2023, the claimant had reasonable grounds to investigate the 2013 will’s validity. The will appeared sound—drafted by solicitors without concerns, backed by a GP’s assessment, and initially supported by the claimant’s own expert. For this period, the court made no order as to costs and so the successful defendant could not recover her costs from the claimant up to that date.
- Ordinary hostile litigation phase
After February 2023, the case transitioned into ordinary hostile litigation. By then, it had gone past the investigative stage. Therefore, from February 2023 onwards, the normal “costs follow the event” rule applied and the claimant was ordered to pay the first defendant’s costs from that point on.
Takeaway
Parties to a probate dispute should not assume their costs will be covered by the estate. Losing a case often means a party has to bear both their own costs and a significant portion of the opponent’s costs. This underlines that parties in probate disputes should explore mediation and other forms of ADR to mitigate that risk and seek to reach terms of settlement.
