Approximately how much does it set you back to challenge a will?
Even if the deceased left a will, there is a strong awareness that the deceased's wishes may be contested. A will can be challenged on several grounds, including:
- insufficient execution;
- incapacity to leave a will;
- a lack of understanding and approval;
- unjustified influence; and
- forgery/fraud
In addition to the aforementioned grounds, the Inheritance (Provision for Family and Dependants) Act of 1975 allows certain categories of individuals to seek reasonable financial provision from the deceased's estate.
The likely costs of contesting a will
It is common knowledge that litigation is expensive, and contesting a will is no exception. Because of the nature of the claim and the amount of work and investigation involved, inheritance claims can be more expensive than other types of litigation.
Inheritance claims are a type of hostile litigation, and the following general rules apply:
- The court will determine the costs; and
- The losing party may be ordered to pay the costs of the winning party.
It is a common misconception that costs in inheritance claims are automatically deducted from the estate. This is not always the case, as the general rule in the first instance is that the unsuccessful party must pay the successful party's costs. However, there are two long-standing exceptions to this general rule:
- The costs of unsuccessfully opposing probate may be borne by the estate if the testator (person who made the will) or persons interested in the residue of the estate were the cause of the litigation; and
- If the circumstances of the case warranted an investigation into the will, the costs incurred by the parties should be borne by those who incurred them.
The aforementioned exceptions are based on the decision in the High Court cases of Spiers v English [1907], and these principles were later confirmed in the case of Costic v Chaplain [2007], and were recently applied in Re Ritchie [2009].
As a result, anyone considering contesting a will should not assume that the estate will pay their legal fees. As previously stated, inheritance claims can be more expensive than other types of litigation, and in some cases, the costs incurred may exceed the estate's value. Any party considering contesting a will should consider whether their costs will fall within one of the two exceptions to the general rule. If the nature of their claim does not fall within one of the two exceptions, the party contesting the will must weigh the costs and risks involved.
The costs of taking an inheritance claim to a final hearing (which usually takes 12 to 18 months from the time the claim is issued) can easily run into tens of thousands of pounds. Statistically, 95% of cases issued do not go to trial, and the parties agree on settlement terms. It is therefore critical to obtain legal advice on the issue of costs as early as possible in order to protect a party's position. Such claims can be funded in a variety of ways.
How much does it cost to contest a will?
The cost of contesting a will is determined by when the will dispute is resolved. If, for example, the opponent accepts that the will is invalid after receiving an initial letter, the likely legal costs will be in the region of £500 to £1,500 plus VAT.
If an initial letter does not resolve the dispute, the parties should engage in mediation or another form of non-binding conversation. The cost of getting to this point is usually in the region of £7,500 to £10,000 plus VAT.
If a mediation or without prejudice conversation is unsuccessful and Court proceedings are required, the costs to initiate the claim will rise to between £15,000 and £20,000 plus VAT. If the case goes to a final trial, the costs could easily exceed £100,000! The trial is the most expensive part of any litigation.
To put this in context, roughly 50% of cases settle before proceedings are issued, and only about 2% of cases proceed to a final trial. It is critical in all will disputes that the issues are identified early on and that all parties engage in mediation or without prejudice conversations to try to resolve matters as cheaply as possible. It is therefore critical to retain the services of a qualified and experienced solicitor who specializes in Will contests from the start.
Before contesting a will and instructing a solicitor, you should first check any insurance you may have that may cover legal expenses. Some bank cards, for example, include such insurance. However, if you do not have legal expenses insurance and your chances of success are good, you should ask your solicitor if they will act on your behalf under a Conditional Fee Agreement (also known as a no win no fee agreement). Please keep in mind that, while such agreements cover your own costs, they do not cover the costs of your opponent if you lose the claim. If you are unable to fund your claim through legal expenses insurance or a Conditional Fee Agreement, a solicitor will frequently request that his or her fees be paid on an hourly basis.
If you contest a will, the standard order is that the winning party pay the losing party's reasonable costs. A solicitor should advise their client about After the Event Insurance at the outset of any case, to cover the opponent's costs if their claim is unsuccessful.
It is critical to seek legal counsel from the start in order to avoid any pitfalls regarding the costs involved in contesting a Will, which can be very costly.
Why is contesting a will so expensive?
Contesting a will can be a difficult process that necessitates the use of expert evidence. If the Deceased lacked capacity when executing the Will, medical expert reports will undoubtedly be required. A forensic handwriting expert is frequently required when fraud is suspected. Disputes over the value of the estate are common, necessitating the use of surveyor's reports. Furthermore, in most Will contests, emotions are often high, and parties inevitably do not see "eye to eye." This can lead to disputes going to court, which is the most expensive part of the litigation process. If Court proceedings are issued, it is customary for a barrister to become involved, draft the necessary Court papers, and represent a client at any subsequent hearings.
To try to reduce costs, it is critical to instruct a solicitor who specializes in contesting a Will at the outset of a claim so that the issues can be identified and the parties can seek mediation as soon as possible.
Can I get legal aid if I want to contest a will?
If people cannot afford to pay for legal costs and the case is eligible for legal aid, legal aid can help cover the costs of legal advice, mediation, and representation in a court or tribunal. However, the legal aid scheme does not cover all legal advice, and unfortunately, these types of cases are not eligible. However, if there is a good chance of success, it is possible to instruct solicitors on a 'pay at the end' basis (i.e. e If funding is an issue, consider using 'no win, no fee' agreements. It may also be possible to make a claim on existing insurance policies or obtain insurance to cover the cost of legal advice.
The UK is defending a contested will.
In England and Wales, the validity of a will can be challenged on several grounds, and those who benefit from the terms of the will are likely to want to defend such a challenge in order to protect their inheritance. Their success is heavily reliant on thoroughly investigating and evaluating the Will. This can be an expensive piece of litigation with serious financial ramifications. To protect your position, it is therefore prudent to seek advice on the issue of costs from the start.
The costs of defending a contested will
Disputes over contested wills, whether as a claimant or a defendant, can be costly, resulting in tens of thousands of pounds in legal fees. Most cases do not go to trial, but if they do, legal fees can easily exceed £100-150,000 per party. The costs involved can sometimes exceed the value of the estate in question. A common misconception is that the costs of a claim are automatically deducted from the estate, which is not always the case. The judge has discretion, and the standard rule is that the losing party pays the winning party's costs. To protect your position, it is therefore prudent to seek cost advice from the start.
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