Contentious Probate Costs: Indemnity, proportionality and when the court gets involved
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Probate disputes can be emotionally charged, legally complex, and financially dangerous.
Contentious probate costs are the legal fees and related expenses that arise when there is a dispute about a will or the administration of an estate, and they can quickly become as stressful as the dispute itself.
In this guide, we explain how costs work in contentious probate and what that might mean for you. We look at the main principles the court applies, who may end up paying, and the practical steps you can take to manage risk. In particular, we cover:
- What are contentious probate costs?
- The key principles the court applies
- When the estate may have to pay
- When individuals pay their own (or others’) costs
- How conduct can shift the costs outcome
- Indemnity costs: when the court gets tougher
- Proportionality: are the total costs sensible?
- When and how the court assesses bills
- Typical contentious probate cost scenarios
- Managing costs as an executor
- Managing costs as a beneficiary
- The role of early advice and mediation
- Help with contentious probate costs?
What are contentious probate costs?
“Contentious probate” simply means a dispute involving a will or an estate. It might be a challenge to whether a will is valid, a disagreement about who should be executor, a claim for a larger share of the estate, or a complaint about how assets are being dealt with.
When a dispute starts, costs begin to run. These can include solicitors’ fees, barristers’ fees, court fees, expert reports, VAT and, in some cases, mediation or tracing fees. The key issue in any case is who ultimately has to pay these costs and on what basis.
The key principles the court applies
Although the law on costs is technical, most decisions in probate disputes come back to two core ideas.
The first is whether the dispute genuinely helped the estate. If a case was needed to work out what a will means, whether it is valid, or who should administer the estate, the court may see those costs as a proper estate expense.
The second is who caused or escalated the problem. If someone’s behaviour created the dispute, or made it worse than it needed to be, the court may conclude that they, rather than the estate or other parties, should bear the financial consequences.
When the estate may have to pay
The estate is more likely to bear the costs where there was a genuine, reasonable doubt about something central to the administration. That might include real concerns about mental capacity when the will was signed, possible undue influence, or uncertainty about whether the will was properly executed.
The estate may also pay where the wording of the will is unclear and more than one interpretation is plausible. Asking the court to decide what the will means can benefit all beneficiaries and executors by bringing certainty. If everyone has behaved reasonably and the costs are proportionate, the court may allow them to be met from estate funds.
When individuals pay their own (or others’) costs
Where a dispute is weak, unnecessary, or driven by poor conduct, individuals are far more likely to be left to pay their own costs, and sometimes the other side’s costs as well.
This can happen where someone brings a speculative challenge to a will with little supporting evidence, or continues a claim after clear advice that it is unlikely to succeed. It can also arise where a party refuses to engage in sensible discussions or mediation without a good reason, pushing the matter towards a hearing that could have been avoided.
How conduct can shift the costs outcome
Conduct before and during the proceedings can have a direct impact on who pays what. The court may consider whether concerns were raised promptly, whether reasonable questions were answered, and whether relevant documents were provided in good time.
It will also look at how the litigation was run. Aggressive or inflammatory correspondence, unnecessary applications, missed deadlines and ignoring court directions can all be held against a party. By contrast, narrowing the issues and making realistic offers to settle usually count in their favour.
If conduct has been particularly poor, the court can depart from what might otherwise be the natural outcome and make a much tougher order on costs against the party at fault.
Indemnity costs: when the court gets tougher
Most of the time, when one party is ordered to pay another’s legal costs, those costs are assessed on the standard basis. On that basis, only costs that were reasonably incurred and reasonable in amount are usually allowed, and doubts are resolved in favour of the paying party.
Indemnity costs are different and more serious. They are normally reserved for cases involving misconduct or other exceptional circumstances. On the indemnity basis, more of the receiving party’s costs are likely to be allowed, and doubts are resolved in their favour instead.
For the party ordered to pay, an indemnity costs order can therefore lead to a noticeably higher bill than would have been the case on the standard basis.
Proportionality: are the total costs sensible?
Proportionality is about whether the overall level of costs makes sense in light of what is at stake. The court can consider the size of the estate, the complexity of the legal and factual issues, and how important the outcome is for those involved.
It will also look at how the case was run. Using very senior fee-earners for routine work, duplicating effort, or allowing large amounts of time on relatively simple tasks can all raise concerns. Heavy litigation over a modest sum is another warning sign that costs may not be proportionate.
Even if individual items of work appear reasonable on their own, the court can still reduce the total bill if, standing back, it looks out of proportion to the dispute as a whole.
When and how the court assesses bills
At the end of a contentious probate claim, such as a will challenge, the court will usually make an order stating who should pay whose costs and on which basis. If the parties cannot agree the figures, those costs can then be formally assessed, often by the Senior Courts Costs Office.
On assessment, the court examines whether the work done was necessary and whether the amounts charged were reasonable and proportionate. It can disallow or reduce items where it considers the work excessive, duplicated, or not justified by the issues in the case.
Separately, there can be disputes about a solicitor’s bill to the estate itself. If beneficiaries or executors are concerned that fees are too high for the size or complexity of the estate, it may be possible in some cases to ask the court to assess that bill and reduce it where appropriate.
Typical contentious probate cost scenarios
Certain patterns arise regularly in practice. One is the failed will challenge, where allegations of lack of capacity or undue influence are not supported by the evidence. If the court concludes that the challenge should not have been brought, the claimant may be ordered to pay both their own costs and a substantial share of the other side’s costs.
Another is mishandling by an executor. Unexplained delays, poor record-keeping, lack of communication, or favouring one beneficiary over another can all lead to disputes and extra legal work. The resulting costs may then fall personally on the executor rather than on the estate.
Sometimes the difficulty lies in the drafting of the will. Poor wording or conflicting clauses can create genuine uncertainty. Where the court must interpret the will to resolve that uncertainty, and everyone has behaved reasonably, it may be fair for the estate to bear the costs because the problem stems from the will itself.
Managing costs as an executor
Executors and administrators are central to how costs develop. They owe duties to the estate and all beneficiaries, and are expected to act even-handedly and sensibly throughout.
Practical steps include keeping clear records, responding promptly to reasonable requests for information, and taking legal advice at an early stage when issues arise. Executors should ask for regular costs updates so they understand how fees are building and can query anything that appears out of line with the work done.
They should also consider alternatives to full court proceedings, such as mediation or round-table meetings. An executor who can show that they have taken measured, proportionate steps to manage and resolve disputes is in a stronger position if the court later has to decide who should pay the legal costs.
Managing costs as a beneficiary
Beneficiaries sometimes assume that the estate will automatically pay for any dispute, but that is not guaranteed. The court will look at whether their concerns were justified and how they behaved in raising and pursuing them.
If you are a beneficiary with worries about an estate, it is usually best to raise them early, in writing, and in a calm and factual way. Ask for information and documents before assuming misconduct. Taking legal advice before issuing proceedings can help you understand your position and the likely cost risks.
You should also be open to settlement discussions and mediation. A beneficiary who refuses to consider these options, without a good reason, may find that decision held against them when the court comes to decide who should pay costs.
The role of early advice and mediation
Many contentious probate costs can be avoided or reduced if issues are addressed early. Problems that are left to harden into entrenched positions tend to be more expensive, time-consuming and emotionally draining to resolve.
Early advice from a specialist solicitor can help you understand the strengths and weaknesses of your case, identify realistic options, and avoid steps that might later be criticised by the court. In some situations, a single letter or an early meeting is enough to move matters forward.
Mediation is particularly valuable in estates work, where family relationships and emotions are often central. It offers a confidential setting for discussion and can lead to flexible solutions that a court might not impose. Courts increasingly expect parties to consider mediation seriously when they later decide what is fair on costs.
Help with contentious probate costs?
This guide can only give a general overview of contentious probate costs, including indemnity, proportionality and when the court may get involved. The right approach in any case will depend on the size and nature of the estate, the issues in dispute, and how the people involved have behaved.
If you are an executor, beneficiary or other interested party facing a will or estate dispute, it is important to understand your potential cost risks before committing to a particular strategy. Early, tailored advice can make a significant difference to both the outcome and the final legal bill.
QLAW advises on all aspects of contentious probate, including who is likely to bear the costs, the risk of indemnity costs, challenges to solicitors’ bills and applications for court assessment. You can contact the firm by phone or email to discuss your situation and the options available.
This article is for general information only, does not constitute legal advice, and should not be relied on as a substitute for taking advice on the facts of your own case. The law and court practice may change over time, and outcomes in costs disputes are often highly fact-specific. You should always obtain advice from a qualified solicitor before starting, defending or settling any probate dispute.
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