Costs in Contentious Probate: What to Expect and How to Manage Them

Typical Costs at Different Stages

The costs of contentious probate vary significantly by stage and complexity. Typical ranges (per party, including VAT):

For capacity cases, add medical expert fees: £3,000–£10,000+. For complex fraud or forgery cases, forensic document examination: £5,000– £15,000+. For multi-party cases (multiple claimants or defendants), costs multiply.

Court fees are also payable — for a Chancery Division claim, the issue fee is based on the claim value and can reach £10,000 for a high-value estate dispute.

Who Pays: The General Rule and the Probate Exceptions

The General Civil Rule

In civil litigation, the general rule under CPR Part 44 is that the unsuccessful party pays the successful party's costs. This means that if you contest a will and lose, you may be ordered to pay the other side's costs — on top of your own.

Special Probate Costs Rules

Contentious probate has two exceptions to the general rule, both originating in case law:

• The ‘testator's fault’ exception: Where the dispute was caused by the testator's own actions — for example, where the testator wrote an ambiguous will, lacked capacity but the solicitor failed to note it, or behaved in a way that reasonably gave rise to the dispute — the court may order the costs of all parties to be paid from the estate. This means nobody bears personal costs liability, but the estate is depleted
• The ‘circumstances’ exception: Where there were reasonable grounds to investigate the will (for example, suspicious circumstances around its making), even an unsuccessful claimant may not be ordered to pay the other side's costs. The court has a wide discretion in probate to depart from the usual rule where the justice of the case demands it

These exceptions do not apply automatically. They require the court to exercise its discretion. The facts of each case determine which costs order is appropriate.

Funding Options

Private Funding

Most contentious probate cases are funded privately — the client pays their solicitor's costs as the case progresses (on account). This is the most straightforward arrangement but requires the client to have sufficient capital to fund the litigation.

Conditional Fee Agreements (No Win, No Fee)

Conditional fee agreements (CFAs) are available for some contentious probate claims, particularly Inheritance Act claims. Under a CFA, the solicitor charges a reduced fee during the case (or no fee) and a success fee if the case succeeds. The success fee can be up to 100% of the base costs but is capped at 25% of the damages recovered.

CFAs are not universally available — solicitors will only take cases on a CFA if they assess the prospects of success as reasonable. Will validity challenges (particularly undue influence cases) are generally considered high risk and may not attract CFA funding.

After the Event Insurance

After the event (ATE) insurance can be purchased to cover the risk of being ordered to pay the other side's costs if the case is lost. Premiums are typically £5,000–£20,000+ and are assessed based on the merits of the case and the potential costs liability.

Litigation Funding

Third-party litigation funders will fund contentious probate cases in return for a share of any recovery. This is typically available only for high-value cases (£500,000+ estates) with strong prospects of success.

Mediation: The Most Effective Cost Control Tool

Mediation resolves approximately 70–80% of estate disputes that enter it. A one-day mediation costs each party typically £1,500–£5,000 including their solicitor's time — a fraction of trial costs. Even if mediation fails, the costs are modest relative to the litigation costs avoided.

Courts actively encourage mediation and may penalise parties who unreasonably refuse to engage — even a successful party can be deprived of their costs if they unreasonably declined to mediate. For a full guide to mediation in estate disputes, see our guide on mediation in estate disputes.

Managing Costs Risks

• Obtain a clear costs estimate from your solicitor at the outset and at each stage of the proceedings
• Obtain a realistic assessment of the prospects of success — do not litigate a weak case to the point of no return
• Consider making a Part 36 offer — a settlement offer that if not beaten by the other side at trial gives you a costs advantage even if you win
• Engage with mediation seriously and promptly — refusing to engage with ADR increases your costs risk
• Note the 6-month Inheritance Act deadline — missing it and then having to seek an extension is expensive and uncertain. See our guide on time limits for contesting a will
• Consider whether the value of the estate justifies the costs of litigation — contesting an estate worth £100,000 with likely costs of £150,000 per side is rarely commercially sensible

For the broader contentious probate landscape, see our introduction to contentious probate. For Inheritance Act claims, see our Inheritance Act 1975 guide. For will validity grounds, see our guide on the grounds for contesting a will. For time limits, see our guide on time limits for contesting a will. For the alternative to litigation, see our guide on mediation in estate disputes.

For the non-contentious estate, see our estate administration checklist and our complete UK probate guide.

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