One of the first questions to arise in a contentious probate matter is often – who is picking up the bill? There are some circumstances where the costs can come from the estate, dependant on whether you are seeking to claim from the estate or making a claim against it. However, it is also possible for a court to make no order as to costs or order a party, the losing party in this instance, to pay costs to the successful party on an indemnity basis rather than the standard basis (that being a higher percentage of the costs reasonably incurred than would ordinarily be ordered).
Where you are seeking to make a claim against the estate you cannot simply assume you will be awarded something and the costs can therefore be taken from this award.
The recent case of Burgess v Whittle & Rowell [2025] EWHC 2829 (Ch) explored costs following a successful probate claim which sought to uphold a 2014 will.
Background
The proceedings concerned the validity of a Will dated 2014 (“the Will”) following the passing of the testator in 2017. The Will had disinherited the first defendant and instead divided her share between her two sons. The Claimant sought a grant of probate as a result of the Will and the first defendant opposed the grant and challenged the Will on the basis the testator did not have capacity, want of knowledge and alleged undue influence.
The first defendant lodged a caveat to prevent a grant of probate being obtained in 2017 and the claimant then brought these proceedings in 2023. The defendant submitted a defence to the claim and made an application for permission to instruct a joint expert to deal with capacity. This application was granted and the expert held that the testator had the required capacity at the time of making the Will.
The day before the trial commenced the first defendant filed a skeleton argument conceding the points raised on capacity and undue influence and declared neutrality on the other issues. As a result, the trial went ahead and lasted less than one hour. The court held that the Will was valid and ordered a grant be issued to the claimant with costs then to be determined.
The claimant sought their costs on an indemnity basis and the first defendant defended this position and sought no order as to costs, relying on the second probate exception from Spiers v English [1907] P 122. This exception allows the court to order the costs of an unsuccessful party be paid from the estate where the investigation was necessary as a result of the testator or the circumstances reasonably justified such an investigation.
The court rejected this submission, holding there was no reasonable basis for suspecting the Will to be invalid and the general costs rule therefore applied – that being that costs follow the event. The sole fact a person is disinherited from a will does not automatically give rise to investigation.
The claimant was awarded their costs on an indemnity basis due to the first defendant’s conduct. Key issues identified were the nature of the challenge, the concessions made a day before trial and refusal of settlement offers made throughout proceedings.
As a result, the court considered the claimants costs budget. The court noted that the usual practice of ordering 90% of an approved costs budget does not apply where indemnity costs are awarded as CPR 3.18, which prevents departure from budgeted costs without good reason, does not apply to indemnity basis assessments.
The claimant produced evidence of total costs incurred of approximately £155,000 (with a varied budget of £109,133.50) and as a result the court considered £109,000 to be a reasonable sum to order as an interim payment to be made on account with interest on costs.
In addition, the claimant was also awarded indemnity from the estate for any unrecovered costs following a notice confirming an intention to seek costs from the estate. It was confirmed that in the absence of an acting executor an individual successfully defending a claim against the estate should be awarded the same protection as an executor would have been (derived from Sutton v Drax 1815).
This case should therefore be treated as a stark warning to any who wish to claim against an estate simply because they have been disinherited from the same. This alone will not likely result in a justified investigation and a losing party can find themselves paying their own costs and a large portion of the oppositions.
It is therefore important to seek independent legal advice ahead of taking action against an estate to ensure there are real and proper reasons to bring a claim.
If you would like to seek any legal advice in relation either bringing a claim against an estate or defending a claim, please speak with the contentious probate team at [email protected].
One of the first questions to arise in a contentious probate matter is often – who is picking up the bill? There are some circumstances where the costs can come from the estate, dependant on whether you are seeking to claim from the estate or making a claim against it. However, it is also possible for a court to make no order as to costs or order a party, the losing party in this instance, to pay costs to the successful party on an indemnity basis rather than the standard basis (that being a higher percentage of the costs reasonably incurred than would ordinarily be ordered).
Where you are seeking to make a claim against the estate you cannot simply assume you will be awarded something and the costs can therefore be taken from this award.
The recent case of Burgess v Whittle & Rowell [2025] EWHC 2829 (Ch) explored costs following a successful probate claim which sought to uphold a 2014 will.
Background
The proceedings concerned the validity of a Will dated 2014 (“the Will”) following the passing of the testator in 2017. The Will had disinherited the first defendant and instead divided her share between her two sons. The Claimant sought a grant of probate as a result of the Will and the first defendant opposed the grant and challenged the Will on the basis the testator did not have capacity, want of knowledge and alleged undue influence.
The first defendant lodged a caveat to prevent a grant of probate being obtained in 2017 and the claimant then brought these proceedings in 2023. The defendant submitted a defence to the claim and made an application for permission to instruct a joint expert to deal with capacity. This application was granted and the expert held that the testator had the required capacity at the time of making the Will.
The day before the trial commenced the first defendant filed a skeleton argument conceding the points raised on capacity and undue influence and declared neutrality on the other issues. As a result, the trial went ahead and lasted less than one hour. The court held that the Will was valid and ordered a grant be issued to the claimant with costs then to be determined.
The claimant sought their costs on an indemnity basis and the first defendant defended this position and sought no order as to costs, relying on the second probate exception from Spiers v English [1907] P 122. This exception allows the court to order the costs of an unsuccessful party be paid from the estate where the investigation was necessary as a result of the testator or the circumstances reasonably justified such an investigation.
The court rejected this submission, holding there was no reasonable basis for suspecting the Will to be invalid and the general costs rule therefore applied – that being that costs follow the event. The sole fact a person is disinherited from a will does not automatically give rise to investigation.
The claimant was awarded their costs on an indemnity basis due to the first defendant’s conduct. Key issues identified were the nature of the challenge, the concessions made a day before trial and refusal of settlement offers made throughout proceedings.
As a result, the court considered the claimants costs budget. The court noted that the usual practice of ordering 90% of an approved costs budget does not apply where indemnity costs are awarded as CPR 3.18, which prevents departure from budgeted costs without good reason, does not apply to indemnity basis assessments.
The claimant produced evidence of total costs incurred of approximately £155,000 (with a varied budget of £109,133.50) and as a result the court considered £109,000 to be a reasonable sum to order as an interim payment to be made on account with interest on costs.
In addition, the claimant was also awarded indemnity from the estate for any unrecovered costs following a notice confirming an intention to seek costs from the estate. It was confirmed that in the absence of an acting executor an individual successfully defending a claim against the estate should be awarded the same protection as an executor would have been (derived from Sutton v Drax 1815).
This case should therefore be treated as a stark warning to any who wish to claim against an estate simply because they have been disinherited from the same. This alone will not likely result in a justified investigation and a losing party can find themselves paying their own costs and a large portion of the oppositions.
It is therefore important to seek independent legal advice ahead of taking action against an estate to ensure there are real and proper reasons to bring a claim.
If you would like to seek any legal advice in relation either bringing a claim against an estate or defending a claim, please speak with the contentious probate team at [email protected].
