Who Pays Costs in Probate Disputes? Understanding Probate Litigation Costs
Disputes over a will can be emotionally draining and often come with a financial sting, too.
When families find themselves in court over inheritance issues, one of the biggest questions is: who pays costs in probate disputes?
Understanding how probate litigation costs work can help you make informed decisions and avoid turning a hard-fought legal win into an unexpected loss — particularly for families in Worthing, Chichester and across West Sussex.
If you need support navigating the process, our probate services can offer clear guidance from the outset.
The General Rule – The Losing Party Usually Pays
In many probate cases, the principle of “costs follow the event” applies.
This means the losing party is usually ordered to pay the legal costs of the winning side. The goal is to discourage unnecessary litigation and ensure those bringing or defending valid claims are not left out of pocket.
However, costs in probate litigation are not always straightforward, and there are important exceptions that may shift the financial burden.
When the Estate Pays the Probate Litigation Costs
If the dispute stems from the actions of the deceased — for example, if they left behind a confusing or contradictory will — the court may decide that the costs should be paid out of the estate.
Why the Court May Order the Estate to Pay
- Both parties acted reasonably
- The dispute was unavoidable
- The will itself created uncertainty
In these circumstances, the court recognises that family members did not cause the conflict and should not be unfairly penalised.
When a Party May Be Personally Liable for Costs
If someone behaves unreasonably during the litigation — such as refusing to negotiate, prolonging proceedings, or pursuing weak or unfounded claims — the court may order them to pay costs personally.
This can happen even if they succeed on parts of the case.
Behaviour the Court Considers Unreasonable
- Deliberately dragging out proceedings
- Refusing mediation without good reason
- Making baseless claims
- Using tactics that waste time or money
Acting proportionately and constructively throughout the process can help avoid adverse probate litigation costs.
Key Factors That Influence Costs in Probate Litigation
Several strategic decisions can shape how costs are awarded in will and inheritance disputes.
Open vs Without Prejudice Offers
“Without prejudice” offers cannot be shown to the court until after judgment, whereas open offers remain visible throughout.
A reasonable early offer can protect against a harsh costs order.
The Importance of Mediation
Courts now expect parties to attempt mediation before trial.
Refusing to mediate without a strong reason can lead to cost penalties if the court believes the dispute could have been resolved earlier.
Use of Caveats
Lodging caveats purely to delay probate or gain leverage is discouraged.
Improper use may result in costs being awarded against the person who filed it.
Avoiding a Hollow Victory
Winning a probate case does not always mean a positive outcome if legal fees reduce the estate significantly — or if you are ordered to pay someone else’s costs.
Understanding who pays costs in probate disputes from the outset can help you plan strategically and protect your financial position.
Sensible negotiation, realistic offers and a willingness to mediate can all help manage probate litigation costs and reduce risk.
Final Thoughts
Probate litigation is rarely straightforward.
Emotions run high, and the issues involved are deeply personal.
With clear guidance and a solid understanding of costs in probate litigation, you can navigate the process with greater confidence and avoid paying the price for matters beyond your control.
Contact our team in Worthing or our Chichester office today to see how we can help.