Whether you are challenging or defending the validity of a will, it can be easy to overlook the importance and impact of legal costs. Disputes such as these tend to be complex and lengthy, and legal costs can quickly mount.

Many assume that the estate will foot the legal bill for both parties’ lawyers, but in reality the law is not so straightforward.

Firstly, it is important to note there is a difference between the legal costs associated with administering an estate, and the legal costs associated with bringing, or defending a dispute about an estate. Legal costs incurred in relation to the administration of an estate are known as “administration expenses”. Whether a solicitor is appointed to act as an executor of a will, or the executor of a will chooses to instruct a solicitor to help them with their job, such costs can be met by the estate, providing they are reasonably incurred.

If however you find yourself involved with a dispute about an estate, then things can get complicated. This was highlighted by a recent case of Goodwin v Avison, 2021 EWHC 2356 Ch.

The will-maker (known as a testator) in this case was Mr Goodwin, who passed away in November 2018 with a large estate of around £3 – 4 million. In his 2017 will, he appointed his son Gary as his executor but his application for probate was opposed by his   sister, Jacqueline and 4 other family members who argued that the will wasn’t valid on a number of grounds. It was argued that a previous will, made in 2005 was the last valid will that the deceased had made.

Eventually, on the sixth day of the lengthy trial, the defendants gave in and admitted defeat. By this time, of course, a substantial amount of legal costs had been incurred by both sides. It then fell to the judge to look at the legal costs and use his discretion to determine who should pay what.

The general rule about legal costs is that the losing party will pay the successful party’s costs, but the judge has a wide discretion. If, for instance, the judge felt that the matter proceeded to court because of something the testator did wrong, then he might decide that the costs should be met by the estate itself. If, however, the dispute did not arise because of the testator’s conduct, then the judge has to look at the conduct of the parties.

If the judge considers that the party who challenges the will had reasonable grounds for doing so, then he may decide that each side should bear their own legal costs. Otherwise, the general rule previously mentioned applies, ie, that the loser pays the winner’s costs.

The judge can even make “split” costs orders, which means that he can essentially tailor his order as to costs to address the different aspects of the claim and defence following an assessment of their merit and reasonableness. This can of course be very difficult for the judge to do, such as in Goodwin, where the case has come to end before the judge has heard all the evidence and considered the case in full.

In Goodwin, the judge decided that the unsuccessful defendants had to pay both their own and the claimant’s costs – none of the issues in the claim could be said to be the fault of the testator and he did not feel that the defendants had a reasonable basis for their challenge.

The case in point highlights the need to for all those contemplating a will challenge to ask their solicitor for advice at every stage of the case about how the legal costs will be met. It is very important to remember that this is a ‘moveable feast’ which can not only change over time as issues in a case can change, but also the judge’s ultimate discretion invariably leads to some uncertainty and the parties will always bear some measure of risk. Legal costs in a will dispute case that goes to trial can easily be in the region of £70,000 to £100,000 per party so such litigation should always be a last resort. It’s also why mediation and other forms of dispute resolution should always be given serious consideration by all parties to a dispute at every stage of a case.

If you require advice about any kind of estate dispute or have questions about legal costs, please contact Ridley & Hall today on freephone 0800 860 62 65 for an initial, free, no obligation discussion in confidence.

James Urquhart Burton – Partner & Solicitor