Estate litigation can be lengthy and expensive, often involving family members contesting a Will for not adequately providing for them. Both claimants and executors defending the claims incur significant legal costs, especially if the dispute proceeds through the High Court.

Common Concerns About Legal Costs

Potential claimants frequently worry about how legal costs will be covered if they succeed against the estate. Traditionally, there’s been a principle that costs should be paid out of the estate‘s “residue,” particularly if the litigation arises from the Will-maker’s failure to fulfill their moral duty to the claimant.

Estate Residue and Legal Costs

The estate residue is what remains after specific gifts provided in the Will have been distributed by the executor. However, courts now sometimes award costs based on the complexity and time consumption of the case, calculated on a legal scale. These scaled costs, while guided by law, may not cover all of the claimant’s legal fees.

The court also considers the interests of justice between parties when awarding costs. For example, if paying costs from the estate’s residue unfairly impacts a beneficiary and the estate is small, courts might order each party to bear their own costs from their share of the estate.

Factors Influencing Cost Awards

The strength of the claimant’s case and their conduct during the proceedings can significantly impact the costs award. For instance, in one case, three children were successful in claiming further provision from their mother’s estate. The court awarded all legal fees to the child who had a clear claim, but only scale costs to the other two children due to partial success and unfavorable conduct.

In another case, claimants who delayed proceedings and brought unsuccessful claims on behalf of the Will-maker’s grandchildren were awarded only a fifth of their costs from the estate’s residue.

Courts may also decide that costs should come out of an unsuccessful claimant’s share if other claimants are successful. For example, in a case involving three daughters, the court decided that the legal fees for the successful claimants should be paid from the unsuccessful claimant’s share of the estate.

The Complexity of Estate Litigation

These cases illustrate the complexity of estate litigation and that successful claimants are not always guaranteed full recovery of their legal fees. It’s crucial to seek advice from a legal professional to assess a claimant’s chances of success and potential cost awards at trial.

Professional Legal Advice

Leading law firms offer fixed-price Initial Consultations to help clients understand their options quickly and cost-effectively. Seeking professional advice can prevent costly mistakes and ensure a better understanding of potential outcomes in estate litigation.