It is often assumed that any legal costs incurred in challenging a Will are deducted out of the estate and not paid by the individual challenging the Will. This is in fact not the case. As in most legal cases the general rule in probate actions is that the costs follow the event. In other words the successful party to an action will recover its legal costs. However, in probate matters there are certain exceptions to the general rule regarding costs.
The exceptions to the general rule on Costs
1. Where the litigation has been caused by the conduct of the testator
Where the Will is ambiguous or causes confusion and it is necessary to have the court make an order as to the effect of the Will. Situations arise where the conduct, habits and mode of life of the testator give grounds for questioning his testamentary capacity. The costs in such cases are almost always paid out of the estate.
2. Where the litigation has been caused by the conduct of principal beneficiaries
If a party wishing to uphold the terms of the Will is the principal beneficiary and it can be proved that he/she has by unreasonable or improper conduct induced the litigation that the court considers reasonable, the costs of the litigation should come out of the estate
3. Where circumstances afford reasonable grounds for opposing a Will
Where there are reasonable grounds for opposing a Will other than those mentioned above the unsuccessful party though not usually granted his costs out of the estate will not have to pay the other party’s costs.
4. Where notice to cross-examine has been given
Where a party to a Will has in his defence given notice that he will raise no positive case but merely insists on the Will being proved in solemn form and intends only to cross-examine the witnesses who attested the Will, such party is not liable to pay the costs of the other party unless it appears that there was no reasonable ground for opposing the Will. This does not mean that his costs will necessarily come out of the estate.
Allegations of Fraud or Undue Influence
Allegations of undue influence or fraud should not be put forward unless there are reasonable grounds to support it. It is not reasonable to challenge a will because it is unfair. Failure to prove the serious allegations can result in being penalised by the court when it comes to an order for costs being made. However, if it can be shown that there were reasonable grounds for contesting the case on these issues then the court may be prepared to relieve the party from paying the costs.
This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.