Cost of Contesting a Will UK: Fees & Funding Guide

At a glance

• General costs rule: under CPR rule 44.2, the unsuccessful party is normally ordered to pay the successful party's costs — "costs follow the event" — but the court has wide discretion to order otherwise.
• The two probate exceptions (Spiers v English [1907]): (1) where the testator's own conduct, or that of those interested in the residue, caused the litigation, costs may be ordered out of the estate; (2) where the circumstances reasonably led to an investigation of the will, each party may be left to bear its own costs.
• Neither exception is automatic. The modern courts apply them narrowly — a case must genuinely fit one of the two categories, not simply involve family disagreement.
• ADR conduct affects costs. Under CPR rule 44.2(5)(e), a party's unreasonable refusal to engage in mediation or other alternative dispute resolution is a factor the court can weigh when deciding who pays.
• Part 36 offers carry automatic costs consequences. An unaccepted, later-beaten Part 36 offer can trigger indemnity costs and enhanced interest against the party who rejected it, under CPR Part 36.
• Legal aid is not generally available for contentious probate in England and Wales.
• Time limit for Inheritance Act claims: six months from the date the grant of representation is first taken out (Inheritance (Provision for Family and Dependants) Act 1975, section 4), extendable only with the court's permission.
• Funding routes commonly used: paying privately, a conditional fee agreement (No Win No Fee), legal expenses insurance, and — for larger estates — third-party litigation funding.

What this document is

A will dispute, sometimes called contentious probate, is a legal challenge to the validity of a will or to how an estate is being administered. Common grounds include lack of testamentary capacity, undue influence, improper execution under the Wills Act 1837, fraud, or a claim under the Inheritance (Provision for Family and Dependants) Act 1975 that the will (or the intestacy rules) fails to make reasonable financial provision for someone who should have been looked after.

This guide does not give you a price for contesting a will. No honest source can — costs depend on how the dispute actually unfolds, whether it settles early, whether mediation is used, and whether it ends in a contested trial. What this guide does is explain the rules that decide who pays, because understanding those rules is what lets you make a sensible decision about whether a dispute is worth pursuing at all.

Get an early, written cost estimate from whoever you instruct, covering the different stages of a claim, before you commit. Understanding the costs rules below is what makes that estimate meaningful — a "strong case on the merits" is not the same as a case where you are likely to recover your costs.

The general rule: costs follow the event

The starting point in all civil litigation, including will disputes, is set out in CPR rule 44.2. Rule 44.2(1) gives the court discretion over whether costs are payable, how much, and when. Rule 44.2(2) then sets the general rule: if the court decides to make a costs order, "the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party" — though the court "may make a different order."

This is often shortened to "costs follow the event." In practice it means that if you contest a will and lose, you can expect to be ordered to pay a significant share of the other side's legal costs, on top of your own. If you win, you can expect a costs order in your favour — but even winners rarely recover 100% of what they actually spent, because the court only orders payment of costs that were reasonably and proportionately incurred (CPR rule 44.3).

Rule 44.2(4) tells the court to have regard to "all the circumstances," including the conduct of the parties and whether a party succeeded on only part of its case. Rule 44.2(5) expands on "conduct" to include:

• how far the parties followed the relevant pre-action protocol before litigation started;
• whether it was reasonable to raise, pursue, or contest a particular issue;
• the manner in which a party pursued or defended its case;
• whether a successful claimant exaggerated its claim; and
• whether a party unreasonably failed to engage in alternative dispute resolution — see the mediation section below.

This is a genuinely wide discretion. It is also why an early, honest assessment of your own conduct in a dispute — not just the merits — matters for your costs exposure.

The two probate exceptions from Spiers v English

Because probate litigation historically served an "inquisitorial" function — helping the court establish the true intentions of someone who can no longer speak for themselves — the courts developed two long-standing exceptions to the general "loser pays" rule. These are usually traced to Spiers v English [1907], and they remain part of the modern law even though CPR rule 44.2 governs the general discretion.

The first exception applies where the person who made the will, or those interested in the residue of the estate, caused the litigation through their own conduct — for example, by the way the will was drafted, witnessed, or kept, creating a genuine and reasonable doubt about its validity. In that situation, the court may order that costs come out of the estate rather than being paid personally by the losing party.

The second exception applies where the circumstances reasonably led to an investigation of the matter — for example, where there was a genuine, evidence-based question over capacity or execution that a responsible party was entitled to have tested. In that situation, the court may order that each side bears its own costs, rather than the loser paying the winner's.

Both exceptions are narrow and are applied cautiously by the modern courts. Simply disagreeing with how an estate was left, or having a family grievance, does not bring a case within either exception. The exceptions exist for cases where the deceased's own actions, or genuinely reasonable grounds for investigation, caused the dispute — not for cases that are really about the merits of the underlying claim. Do not assume either exception will apply to your situation; treat the general "costs follow the event" rule in CPR rule 44.2 as the default, and the Spiers v English exceptions as something to raise with your adviser only if the facts genuinely fit.

Mediation and alternative dispute resolution

Most will disputes settle before trial, and mediation is the most common route. A trained, neutral mediator helps the parties negotiate a resolution without a judge deciding the outcome. It is usually far cheaper and faster than a contested hearing, and — unlike a trial — the outcome can be flexible (for example, a family arrangement that a court could not itself order).

The courts actively expect parties to consider ADR before and during litigation. As set out above, CPR rule 44.2(5)(e) allows the court to take into account whether a party failed to comply with an order for ADR, or unreasonably failed to engage in ADR, when deciding costs at the end of a case. In practice, this means refusing a genuine invitation to mediate without good reason can leave you paying costs you would otherwise have avoided — even if you go on to win.

This does not mean you must accept every offer to mediate regardless of its merits, or that refusing is automatically penalised. The court looks at whether the refusal was reasonable in the circumstances. But given the costs exposure on both sides of a will dispute, a considered refusal — recorded in correspondence, with reasons — is far safer than simply ignoring a mediation proposal.

Part 36 offers: a specific costs tool

A Part 36 offer is a formal settlement offer made under CPR Part 36 that follows strict rules and, in exchange, carries automatic costs consequences if it is not accepted and the case proceeds. If a claimant makes a Part 36 offer that the other side does not accept, and the eventual judgment is at least as favourable to the claimant as the offer was, the court must normally order the losing party to pay costs on the more punitive indemnity basis (rather than the standard basis), together with enhanced interest, running from the date the offer's acceptance period expired — unless the court considers that outcome unjust.

This creates real financial pressure to settle sensibly and early. It also means that badly timed or badly worded correspondence in a will dispute can carry cost consequences you did not intend. Part 36 offers are a specialist procedural tool — get advice before making or responding to one, because the formal requirements matter and an offer that does not comply with CPR Part 36 will not carry the intended consequences.

How a will dispute is typically funded

There is no single funding route that suits every case; the right one depends on the strength of the claim, what is at stake, and your own appetite for risk.

• Paying privately. You cover your own solicitor's fees, expert costs, and court fees as the case proceeds, with the possibility of recovering some of them back if you win under the general costs rule above.
• Conditional fee agreement (CFA / "No Win No Fee"). Enforceable under section 58 of the Courts and Legal Services Act 1990, a CFA means your solicitor's fee is conditional on the outcome, with a success fee typically added if you win. Not every contentious probate solicitor offers CFAs, and they tend to be used only where a claim looks reasonably strong on the evidence available at the outset. You can still be liable for disbursements (court fees, expert reports) and for the other side's costs if you lose, unless you also take out After the Event (ATE) insurance to cover that risk.
• Legal expenses insurance. Many home insurance policies include a legal expenses add-on that can cover some litigation costs, including some will disputes. Check your policy documents or ask your insurer directly — cover and exclusions vary significantly between providers.
• Third-party litigation funding. For larger estates, a commercial funder may cover the costs of litigation in exchange for a share of any recovery. This is generally only viable where the sums at stake are substantial enough to interest a funder.
• Legal aid. Legal aid is not generally available for contentious probate matters in England and Wales — this area sits outside the scope of civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Check GOV.UK's legal aid checker if your circumstances are unusual (for example, where a related issue does fall within scope).

Whichever route you use, ask early and in writing what disbursements you remain personally liable for regardless of the funding arrangement — court fees, expert fees, and barrister's fees are not always covered even under a CFA.

Court and other disbursements to expect

Beyond solicitor and barrister fees, a will dispute typically involves separate disbursements. A probate claim issued at court attracts a court fee (check current rates on GOV.UK, as these are reviewed periodically and are separate from the standard probate application fee). Expert reports — for example, from a psychiatrist on testamentary capacity, a handwriting expert, or a forensic accountant — are billed separately and can be one of the largest single costs in a contested case, which is why they tend to be commissioned only where the issue genuinely turns on that evidence. Mediator fees for a mediation day are usually shared between the parties and are modest compared with the cost of preparing for and attending a trial.

Time limits that affect your costs position

Acting promptly is not just about preserving your legal position — delay affects costs too. A claim brought late, or pursued after the position has become harder to investigate, is more likely to be criticised for unreasonable conduct under CPR rule 44.2(5), with costs consequences to match.

• Inheritance (Provision for Family and Dependants) Act 1975 claims must normally be made within six months of the date on which representation (the grant of probate or letters of administration) is first taken out, under section 4 of the 1975 Act. The court may allow a late application, but only with its permission, and permission is not guaranteed — do not rely on being able to bring a claim late.
• Challenges to the validity of a will (for example, on grounds of capacity, undue influence, fraud, or improper execution) are not subject to the same fixed six-month statutory limit, but general limitation principles and the practical difficulty of gathering evidence as time passes still make early action important.

If you are close to, or past, a relevant deadline, treat that as urgent and get advice immediately rather than researching further — the six-month Inheritance Act time limit in particular is strictly applied.

Common costs mistakes

1. Assuming the estate will automatically pay your costs. The Spiers v English exceptions are narrow and are not triggered by ordinary family disagreement. The default position under CPR rule 44.2 is that the loser pays — plan on that basis unless your adviser confirms your facts genuinely fit one of the two exceptions.
2. Refusing mediation without good reason. Given that ADR conduct is an explicit factor under CPR rule 44.2(5)(e), an unreasonable refusal to engage can cost you even if you ultimately win on the merits.
3. Ignoring or mishandling a Part 36 offer. The costs consequences are automatic and can be severe. Get advice before responding to one, and before making one yourself.
4. Underestimating disbursements. Court fees, expert fees, and barrister's fees are often separate from your solicitor's own charges and are not always covered by a CFA.
5. Missing the six-month Inheritance Act deadline. Late applications require the court's permission, which is not automatic.
6. Treating a strong moral case as a strong costs case. Feeling that an outcome was unfair is not the same as having a claim likely to succeed, and costs exposure applies regardless of how justified the grievance feels.

What to do next

1. Identify exactly what you are disputing — the validity of the will, the administration of the estate, or a claim for reasonable financial provision. Each has a different evidence profile and a different costs picture, and mixing them up early tends to inflate fees later.
2. Get a staged, written cost estimate from whoever you instruct, covering initial investigation, pre-action correspondence, mediation, and litigation, with the assumptions set out clearly.
3. Consider mediation seriously and early, and keep a written record of any invitation to mediate and your response to it, given its relevance to costs under CPR rule 44.2(5)(e).
4. Choose a funding route that matches your appetite for risk, and confirm in writing what disbursements you remain liable for under any arrangement.
5. Check the relevant time limit immediately, particularly the six-month Inheritance Act deadline, and treat any approaching or passed deadline as urgent.

This is legal information, not legal advice. It explains the general costs rules that apply to will disputes in England and Wales and does not take account of your specific circumstances. Reading it does not create a solicitor–client relationship. LegalDocuments.co.uk is not a law firm and is not regulated by the Solicitors Regulation Authority. For advice on your own situation, speak to a regulated legal adviser or use our telephone legal advice service.

This guide provides general information about the costs of contesting a will in England and Wales. It is not legal advice and is not a substitute for advice tailored to your specific circumstances. The law described was accurate as at the review date and is subject to change — always check GOV.UK and legislation.gov.uk for the most current position.

Last reviewed: August 2026 by a non-practising solicitor · Next review due: August 2027 or on legislative change.