Contentious Probate Costs UK: Who Pays When a Will is Contested?
Updated 31 May 2026 · 9 min read · Contentious Probate & Estate Claims
Contesting a will is expensive. Contentious probate claims in the Chancery Division routinely involve six-figure legal costs — and the wrong costs decision can mean you or your estate bearing someone else’s bill as well as your own. The rules on who pays costs in contested probate are different from ordinary litigation: two century-old exceptions allow the court to order the estate (rather than the loser) to pay everyone’s costs in appropriate cases.
The General Rule: Costs Follow the Event
The starting point in all civil litigation, including contentious probate, is CPR r.44.2: the successful party is ordinarily entitled to their costs from the losing party. In a will challenge, if the claimant fails to establish invalidity of the will, the claimant pays the defendant’s costs. If the challenge succeeds, the beneficiaries under the challenged will (or the estate) typically bear the costs. This is the general rule. But probate has two well-established exceptions.
The Spiers v English Exceptions
In Spiers v English [1907] P 122, Sir Gorrell Barnes P identified two situations where the court may order that costs come from the estate rather than the losing party, even where the will challenge fails:
Exception 1 — The Testator Caused the Litigation
Where the testator (by their conduct, the circumstances of the will, or the manner of execution) gave reasonable cause for the litigation, the estate may bear costs. Examples: making multiple inconsistent wills close to death; executing a will in the hospital under unexplained circumstances; leaving estate to a carer who recently took over the deceased’s financial affairs; giving no explanation for disinheriting close family.
Exception 2 — Reasonable Investigation
Where the evidence disclosed by the investigation showed that the testator was in a condition — whether of mental capacity, undue influence, or otherwise — that made reasonable people investigate, the estate may bear costs even if the investigation ultimately yields no grounds for challenge. This recognises that some investigations are necessary and justified even where the will ultimately stands.
The modern position (confirmed in Kostic v Chaplin [2008] EWHC 2909 (Ch) and subsequent cases) is that these exceptions remain good law but should not be applied too readily. The starting point is still costs follow the event — the exceptions require proper factual justification.
When Courts Have Ordered Estate to Bear Costs
Courts have exercised the Spiers v English discretion where:
- The testator had a long history of mental illness and no capacity assessment was obtained at execution.
- The testator made a will disinheriting children and leaving the estate entirely to a carer who moved into the home in the final months of life.
- The solicitor who took instructions had noted concerns about capacity but proceeded anyway without a medical assessment.
- The testator executed several different wills in the same year, in contradictory terms, shortly before death.
- The challenge was fully justified on the evidence available at the start of proceedings, even though further evidence obtained at trial resolved in the will’s favour.
Calderbank Offers: Shifting the Costs Risk
A Calderbank offer (from Calderbank v Calderbank [1976] Fam 93) is a settlement offer made “without prejudice save as to costs.” It is invisible to the trial judge during the substantive hearing but can be placed before the court at the costs stage once judgment is given. Its effect:
- If a claimant makes a Calderbank offer and at trial recovers no more than the offer: the claimant may be penalised on costs from the date the offer expired (they bear their own costs from that point, and may have to pay the defendant’s costs).
- If a defendant makes a Calderbank offer and the claimant fails to recover more than the offer at trial: the defendant can apply for their costs from the date of the offer.
Calderbank offers are the practical costs management tool in probate litigation. A well-timed offer — high enough to be credible, low enough to leave room if the claim succeeds — creates significant costs pressure on the other side and encourages settlement. Both parties should consider Calderbank offers at each key stage of proceedings.
Part 36 Offers in Probate Claims
Part 36 of the Civil Procedure Rules provides a formal offer mechanism with automatic costs consequences that are more rigid than a Calderbank offer. Part 36 applies to contentious probate claims in principle, but its application to claims that are not straightforwardly money claims (for example, where the relief sought is revocation of a grant or rectification of a will) requires careful thought. In practice, Calderbank offers are more commonly used in probate than Part 36 offers, because the relief in probate claims does not always lend itself to the “money claim” framework that Part 36 was designed for.
Split Costs Orders
Where multiple issues are raised in a contested probate claim and one party succeeds on some issues but fails on others, the court may make a split costs order — awarding costs to each party in respect of the issues they won. This is more common in Chancery Division claims generally than in simple binary will challenges (valid/invalid). In a claim raising both testamentary capacity and undue influence, a claimant who establishes capacity but fails on undue influence might recover costs on the capacity issue but be ordered to pay costs on undue influence.
After-the-Event (ATE) Insurance
ATE insurance is a litigation insurance policy taken out after the dispute arises, covering the insured’s exposure to an adverse costs order. In a will challenge, ATE typically covers: the opponent’s costs if the challenge fails; sometimes the insured’s own disbursements (expert fees, court fees). ATE premiums are no longer recoverable from the losing party (since the Legal Aid, Sentencing and Punishment of Offenders Act 2012) — the insured funds the premium from their own resources. Premiums in probate claims typically range from 25% to 50% of the cover amount, depending on the merits assessment. ATE insurance is most valuable where a claimant has a good case but lacks the resources to bear an adverse costs risk if the claim fails unexpectedly.
Indicative Costs of a Contested Probate Claim
| Stage | Indicative cost per side |
|---|---|
| Initial advice and letter before action | £2,000–£5,000 |
| Issuing claim and early case management | £5,000–£15,000 |
| Disclosure and witness evidence | £15,000–£40,000 |
| Expert evidence (medical, handwriting) | £3,000–£15,000 per expert |
| Trial (2–5 days in Chancery Division) | £30,000–£100,000+ |
| Total (fully contested to trial) | £100,000–£300,000+ per side |
These figures explain why courts actively encourage mediation and alternative dispute resolution at every stage of contentious probate proceedings, and why a well-executed will — with a GP capacity assessment on record at execution, clear reasons for any unusual provisions, and independent witness evidence — is the most powerful protection against costly litigation.
The Best Protection: A Clear, Well-Executed Will
Most contentious probate claims arise from wills that were made in circumstances that raise doubt — late-life changes, sudden disinheritance, undue reliance on a carer, or poor execution. A will made while the testator has clear capacity, with two independent witnesses who are not beneficiaries, with a capacity letter from the GP on file at the time, and with clear instructions from an independent adviser, is very difficult to challenge successfully. Reducing the scope for challenge is not just good planning — it saves your family from years of litigation and the certainty of six-figure costs whichever way the court decides.
FAQs
Who pays the legal costs in a contested probate case in England and Wales?
The general costs rule in civil litigation — that the unsuccessful party pays the successful party's costs — applies in contested probate (contentious probate) claims, but with two important historical exceptions developed by the Court of Appeal in Spiers v English [1907] P 122: (1) where the testator (by their own conduct) has caused the litigation — for example, by making a will in circumstances that raise reasonable doubts about capacity or undue influence, leading relatives to reasonably investigate or challenge it — the costs may be ordered to come from the estate; (2) where the circumstances surrounding the making of the will or the testator's mental state were such that reasonable people would investigate, the costs of all parties may be paid from the estate even if the challenge fails. These exceptions are not automatic — the court considers the specific facts. The modern approach, confirmed in Kostic v Chaplin [2008] EWHC 2909 (Ch), is that the Spiers v English exceptions are still good law but should not be too readily applied; the starting point remains that costs follow the event.
What is the Spiers v English rule in probate costs?
Spiers v English [1907] P 122 is the foundational authority for departing from the usual costs rule (loser pays) in probate proceedings. Sir Gorrell Barnes P identified two situations where the estate, rather than the losing party, might bear costs: (1) where the testator or the person interested in the residue has caused or provoked the litigation by the circumstances of the will's execution — for example, a will executed in suspicious circumstances, with evidence of capacity concerns or coercion, where relatives were justified in investigating; (2) where the evidence revealed by the investigation showed that the testator was in a condition that would naturally raise a doubt as to whether the will had been properly executed. These exceptions reflect the principle that where litigation arises from the deceased's own acts, it is fair for the estate to bear the cost of that investigation even if the challenge ultimately fails. Modern courts apply these exceptions cautiously — they do not apply simply because a will is challenged, or because the losing party had some arguable case.
What is a Calderbank offer in probate proceedings?
A Calderbank offer (from Calderbank v Calderbank [1976] Fam 93) is a settlement offer made 'without prejudice save as to costs' — it cannot be referred to during the substantive hearing but can be shown to the court when costs are determined at the end of the case. If the claimant makes a Calderbank offer and the defendant fails to beat that offer at trial (i.e., the claimant recovers less than the offer), the claimant may be penalised in costs from the date the offer expired. Conversely, if a defendant makes a Calderbank offer and the claimant fails to recover more than the offer at trial, the defendant can apply for their costs from the date the offer was open for acceptance. Calderbank offers are widely used in probate litigation as an alternative to the formal Part 36 offer regime (which is available but less commonly used in probate). A well-timed Calderbank offer shifts the costs risk back to the refusing party and is a key tactic in managing costs exposure in a contentious probate claim.
What is after-the-event (ATE) insurance in probate claims?
After-the-event (ATE) insurance is a litigation insurance policy taken out after a dispute has arisen (as opposed to before-the-event/BEF insurance in household or legal expenses policies). In probate claims, ATE insurance covers the claimant's exposure to an adverse costs order — if the claimant loses and is ordered to pay the other side's costs, the ATE insurer pays. ATE premiums can be substantial (typically 20–50% of the potential costs exposure, depending on the strength of the case and the stage of proceedings). Since April 2013, ATE premiums in most civil cases are no longer recoverable from the losing party under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 — the claimant must fund the premium from their own settlement or damages. ATE insurance does not remove the risk of losing — it protects against the financial consequences of an adverse costs order. It is most commonly used where a claimant challenges a will without the benefit of litigation funding or a conditional fee agreement.
Can I get legal costs from the estate when contesting a will?
Potentially, but not automatically. Under the Spiers v English exceptions, a court may order that the costs of all parties — including an unsuccessful challenger — are paid from the estate, where the circumstances of the will's making justified the challenge. The key question is whether the testator's conduct caused or made the litigation reasonably necessary. Courts have ordered estate costs where: (1) the testator made multiple inconsistent wills shortly before death; (2) the testator was known to suffer from dementia but had no contemporaneous capacity assessment; (3) the will benefited a carer or person in a position of influence, raising undue influence concerns; (4) the will disinherited close family members without explanation and there was some evidence of pressure. Courts have NOT ordered estate costs where: (1) the challenge was speculative, with little evidential basis; (2) the challenger delayed unreasonably; (3) the challenge was motivated by disappointment rather than genuine grounds. The safest approach is to obtain early legal advice on whether there are proper grounds for challenge before issuing proceedings — without grounds, a failed challenge will almost certainly result in an order that the challenger pays the estate's costs.
What is the cost of contesting a will in England and Wales?
Contesting a will is one of the most expensive forms of civil litigation. Indicative costs for a hotly disputed contested probate claim: (1) Initial letter before action and case assessment: £1,500–£5,000. (2) Issuing proceedings and early disclosure: £5,000–£15,000. (3) Standard disclosure and exchange of witness statements: £15,000–£40,000. (4) Expert evidence (medical capacity assessments, handwriting expert): £3,000–£15,000 per expert. (5) Trial (2–5 day Chancery Division trial): £30,000–£100,000+ in legal fees. Total costs in a fully contested will claim with a trial can exceed £200,000–£300,000 for each side in complex cases. Even where the estate pays costs under the Spiers v English exceptions, the personal representative assesses and challenges any costs that appear unreasonable — costs are assessed on the standard basis unless the court otherwise orders. These figures explain why alternative dispute resolution (mediation, round-table negotiation) is strongly encouraged by courts at every stage of contentious probate proceedings.
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