In some instances, legal costs will be borne by the Estate rather than by an individual party. For example, where an Executor adopts a neutral position in relation to a claim concerning the Estate, their reasonable legal costs incurred in obtaining advice or performing their duties will ordinarily be payable from the Estate itself.
The legal costs involved in either making or defending a claim against a deceased’s Estate will be at the forefront of most peoples’ minds when considering their options. Costs can quickly escalate and if the matter proceeds to a contested trial, the costs incurred by each party can be significant.
Ultimately, it is for the Court to decide who should bear the cost of the litigation. Ordinarily, if the matter proceeds to a trial, the losing party would be required to pay the successful party’s legal costs. This assumes, of course, that the parties have not been able to agree settlement terms between themselves prior to trial (including who will be responsible for paying the legal costs).
In some instances, legal costs will be borne by the Estate rather than by an individual party. For example, where an Executor adopts a neutral position in relation to a claim concerning the Estate, their reasonable legal costs incurred in obtaining advice or performing their duties will ordinarily be payable from the Estate itself.
Unfortunately, Legal Aid is not available for these types of disputes.
How much will it cost to bring a claim or defend a claim?
It is very difficult to provide a “one size fits all” estimate. The costs involved will very much be dependent upon the individual facts of the case and the position adopted by the opposing party. If, for instance, the opposing party wishes to settle matters swiftly after a letter of claim has been issued or received, then it is possible that an agreement can be reached promptly which will reduce the amount of legal costs incurred.
If matters cannot be agreed promptly between the parties however, it is normally sensible to consider alternative dispute resolution, such as mediation, at a relatively early stage in the proceedings. For a mediation to be successful, there will first have to be disclosure of relevant documentation that exists and clarity as to what it is that each party is seeking.
If the matter does proceed to a fully contested trial (which only rarely occurs in practice), then each parties’ legal costs are likely to be substantial and could quite easily exceed £100,000 plus VAT.
We will keep our clients updated at all times with our estimate of costs for each step of the proceedings.
Funding options
There are several ways in which a party to a contested probate claim could fund their claim or defence. We explore the majority of these options below.
Paying privately from your own financial resources
This is the most straightforward type of arrangement. Our fees are paid as and when invoices are rendered, which will usually occur at the end of each month. At the conclusion of the matter (and if appropriate to do so), we will seek to recover the majority of those fees incurred from the opposing party or from the Estate.
Litigation loan
In appropriate instances, it may be possible to obtain funding from a specialist litigation lender. That lender will need to be informed of the relevant facts and they will require our view as to the prospect of your success in either successfully making or defending a claim.
The lender will also need to be informed of the size of the Estate in dispute and conduct their own credit checks against you. It will be at the sole discretion of the lender as to whether they agree to provide funding or not.
Conditional fee agreements
In certain matters where we form the opinion that there are good prospects of success in either proceeding with a claim or defending a claim, we may be willing to enter into a conditional fee agreement with you. That is, if you are not successful in your claim or defence, then you will not have to pay for the solicitor’s time for acting on your behalf. You would still, however, be required to pay for all third-party costs incurred, such as court fees and any barrister fees who are also not acting for you under a similar conditional fee arrangement. If you lose, you may also have to pay your opponent’s legal costs.
Prior to entering into such an agreement, we would need to be fully informed of the details of the claim being made and have sight of any documentation that exists. We may also need to obtain an external view as to the likely prospects of success by instructing counsel (a barrister) to provide a report on this.
Under this type of arrangement, if your claim is successful, our fees will become due and payable, together with an additional payment known as a “success fee”. This success fee will be a percentage uplift of the solicitors’ fees incurred and will represent the risk taken on by us in acting in this type of agreement.
It may also be possible to enter into a conditional fee agreement on similar terms with whichever barrister is instructed.
A deferred fee arrangement
It may be appropriate in some cases to proceed with a deferred fee arrangement. In these situations, an agreement is reached between the firm and our client that we will not seek payment of our fees until an agreed “milestone” is reached, such as the sale of a property. In this situation, our fees will not be dependent on whether you are successful in your claim or defence. Our fees will be payable in any event once an agreed event has occurred.
For us to consider such an arrangement, we would need to be assured that there would be sufficient funds available to pay our estimated fees. We may also need to place a legal Charge on your property as security for our fees. This Charge would be removed when our fees are paid in full.
Insurance to cover the cost of paying the opponents legal costs
In some cases, it may be possible to obtain an insurance policy known as “After the Event” (ATE) insurance. This provides cover so that, if you are unsuccessful in your claim or defence, the insurer will pay the other party’s legal costs up to the level of cover obtained. In some policies, cover may also extend to your own disbursements and certain legal fees.
However, the premium for ATE insurance is not recoverable from the opponent, even if you are successful. This means that the premium must usually be paid by you personally unless the parties expressly agree otherwise.
It is also possible that you may already have funding or insurance cover available under an existing policy. Legal expenses insurance is often included—either as a standard feature or as an optional add‑on—under a home contents insurance policy. If you do have the benefit of such cover, we would need to discuss the position with you and your insurer to confirm whether they are willing to fund or contribute towards your legal costs, and to agree the funding arrangements going forward.
To make a free enquiry, please call now on 020 8858 6971 to arrange a mutually convenient time for a telephone discussion or email us today.
