Will I get my money back when I challenge a will?
Unsurprisingly a question that I am often asked by clients is one which they should all consider from the start: how likely is it that I will get all of my legal costs back? Some people often have the mistaken belief that, when a will is challenged, the costs for doing so will often come out of the deceased’s estate. This is not the case.
A client embarking on a will challenge, as in virtually all types of litigation, will have to prepare themselves for the fact that the usual result is that the losing party would have to pay the reasonably incurred costs of the winning party. There are also practical considerations. Does the size of the estate warrant incurring expensive legal costs? Does the other party, if he loses the case, have sufficient means to satisfy a costs judgment made against him? Legal proceedings, and particularly those involving a deceased loved-one’s estate, may be upsetting and stressful enough, without the financial hit of getting this wrong at the outset.
Exceptionally, there are circumstances when the court moves away from the above, standard position on costs, but their application is rare and it is much safer to assume that there is always the potential of having to bear not only one’s own legal costs but also the reasonable costs of another party. Where the court is able to consider the rarer, exceptional rules relating to costs, influential determining factors may include: assessing how reasonable it was to question the validity of a will, or whether the testator was the (perhaps unwitting) cause of the problems that the will has created for those left behind. These exceptions are even more unlikely to apply to cases of fraud and coercion (undue influence) because these are not allegations that may be made without the strongest of evidence. The advice of a specialist lawyer can help in these circumstances.