Probate Claims – Who pays the costs?

As we run into the spring we are producing some short articles as to the vexed question of claims against estates.

We are dealing with the questions often raised when clients first approach us.

One of these questions is ‘who pays the costs’?

Unfortunately as in all contentious matters that involve the law and its enforcement this is a grey area.

At present, there is no specific Ministry of Justice pre-action protocol under the Civil Procedure Rules (CPR) which applies to contentious probate claims, so the prevailing authority in this area is the general Practice Direction – Pre-Action Conduct protocol. Practitioners may also have regard to the ‘Association of Contentious Trust and Probate Specialists’ draft protocol for the resolution of trust and probate disputes.

There is however one overriding rule – disputes should be resolved without litigation, which should be seen as a last resort and there should be an early and frank exchange of information to enable the parties to apply a ‘cost/benefit’ analysis at an early stage.

Should the matter go to court then it will be up to either party to apply for costs. This will depend on the result and the conduct of the parties throughout the procedure.

In our experience it is rare for the matter to go to court although proceedings maybe issued to protect each sides position.

As part of the mediation process costs of either party are resolved in any settlement agreement.