Will Dispute Costs UK: Who Pays Legal Costs in Contested Probate?

Updated: 16 May 2026 • Reading time: 8 min

Will disputes and contested probate are expensive, emotionally draining, and uncertain. Before challenging a will — or before assuming you can safely ignore a threatened challenge — you need to understand the costs involved and who is likely to bear them. The rules in England and Wales are nuanced, and getting the strategy wrong can result in a successful party still facing enormous legal bills.

The General Rule: Costs Follow the Event

In civil litigation, the default rule is that the losing party pays the winning party’s reasonable legal costs — “costs follow the event.” This is governed by the Civil Procedure Rules (CPR Part 44). In theory, if you successfully contest a will and it is pronounced invalid, the estate (or the unsuccessful party) pays your costs.

However, in will and probate disputes the courts have historically been willing to depart from the general rule in appropriate cases — particularly where the deceased’s own conduct made the litigation inevitable.

The “Spiers v English” Exceptions

The leading case on costs in probate disputes is Spiers v English [1907], which established two situations where the estate (rather than the losing party) pays both sides’ costs:

1. The testator gave cause for the litigation — for example, the deceased’s conduct, demeanour, or the circumstances surrounding the making of the will gave rise to reasonable grounds to question its validity (such as suspected lack of capacity or undue influence). In such cases, all parties are entitled to have their costs paid from the estate.
2. The circumstances reasonably warranted the inquiry — where there were legitimate reasons to have the court investigate the validity of the will, even if the challenge ultimately fails.

These exceptions have been narrowed somewhat in recent cases. Courts now generally expect parties to have reasonable grounds before litigating, and will not automatically order the estate to bear all costs simply because the testator’s capacity was questioned.

The Modern Position: Active Case Management

Modern probate courts actively case-manage disputes and encourage early resolution. The court expects parties to:

• Attempt mediation before issuing proceedings (a failure to mediate can result in adverse costs orders even for a successful party)
• Comply with pre-action protocols — sending a letter before action and allowing a response period
• Assess the merits of the claim critically before incurring significant costs
• Make and respond to Calderbank offers seriously, with awareness of the costs consequences of rejection

Calderbank Offers: The Costs Strategy

A Calderbank offer is one of the most important tactical tools in will dispute litigation. It is an offer to settle, made “without prejudice save as to costs.” This means:

• The offer cannot be revealed to the trial judge when deciding the substantive issues
• After judgment, the offer can be produced when the court decides who pays costs
• If the recipient refused the offer and then failed to beat it at trial, the court will typically order them to pay costs from the date of refusal — even if they otherwise “won” on the main issues

The strategic use of Calderbank offers can significantly shift the financial dynamics of a dispute. A well-timed offer, at a realistic figure, puts real pressure on the other side to settle and protects your costs position if they refuse unreasonably.

Part 36 offers (the CPR equivalent for standard civil litigation) can also be used in probate disputes in some circumstances, though their mechanics differ slightly from Calderbank offers.

Typical Costs in Will Disputes

Costs vary enormously. As a rough guide for England and Wales:

These figures are indicative only and depend heavily on the complexity of the case, the number of witnesses (including expert witnesses on medical capacity), the size of the estate, and the conduct of the parties.

Funding Options for Will Disputes

Conditional Fee Agreements (No-Win No-Fee)

Many contentious probate solicitors offer CFAs for claimants who have reasonable prospects of success. You pay nothing if you lose; if you win, the solicitor charges a success fee (up to 100% of the base costs, capped at 25% of damages in some cases). After-the-event (ATE) insurance can cover the risk of paying the other side’s costs if the case is lost.

Damages-Based Agreements

Under a DBA, the solicitor takes a percentage of any money recovered (typically 25–40%). This aligns the solicitor’s financial interest with the client’s outcome. DBAs are available in probate disputes but less commonly used than CFAs.

Legal Expenses Insurance

Many home and contents insurance policies include legal expenses insurance that covers inheritance disputes up to a certain limit. Check your existing policies before incurring costs.

The Role of Mediation

Mediation is strongly encouraged by the courts and should be considered at the earliest opportunity. A skilled mediator can help parties find a commercial resolution that saves everyone significant costs. Courts have imposed cost penalties on parties who unreasonably refused to mediate — even where those parties ultimately won at trial.

Mediation is confidential, flexible, and much faster than litigation. Most will disputes that enter mediation settle on the day.

The Cost of Doing Nothing

If you believe a will is invalid — perhaps because the deceased lacked capacity, or was subject to undue influence — delay can be costly. Executors may distribute the estate before a challenge is mounted. Acting early, getting specialist legal advice, and issuing a caveat at the Probate Registry to prevent a grant being issued are critical first steps that can preserve your position at relatively low cost.

Frequently Asked Questions