Understanding Legal Costs in Estate Litigation: Who Pays and How Much?

In England and Wales, the landscape of estate litigation costs is evolving, with a shift towards a more adversarial approach where the successful party is awarded costs payable by the unsuccessful party. This means that individuals involved in wills and estate disputes must be prepared to bear their own legal fees and potentially pay the costs of the opposing party if they are not successful.

Historically, courts often ordered the estate to bear the legal costs of parties in estate proceedings, regardless of the outcome. However, the trend is now moving towards awarding costs in a manner similar to other adversarial litigations, where the successful party receives their costs from the unsuccessful party.

An exception to this approach is that executors generally receive their legal costs from the estate, regardless of the outcome. However, if an executor is found to be using their position and estate funds for personal gain, they may be denied costs paid by the estate.

Courts are also making more nuanced cost awards, including “blended costs” where parties may be awarded costs up to a certain stage in litigation but denied costs after that stage. Factors such as social media use and reasonableness of conduct in litigation are considered in cost assessments.

In cases where a claim is found to be entirely meritless and pursued recklessly, special costs or substantial indemnity costs may be awarded against the unsuccessful party. It is important for litigants to consider the potential costs implications of their legal strategy and seek advice from their lawyer throughout the litigation process.

Overall, the shifting approach to estate litigation costs in England and Wales highlights the importance of understanding and managing the risks associated with legal fees in wills and estate disputes.