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Ally Tow
Ally Tow,
Who funds a probate dispute?
06 August 2018

Probate disputes can be very expensive and it is a common misconception that costs of a probate dispute will be paid out of the estate. Whilst this is an order that the court can make it is not the only order that can be made and in many cases is not likely to be the court’s first choice.

Court decides who is to pay

As with any other litigation claims the court retains a wide discretion in relation to costs, allowing it to make a range of orders relating to funding. This can include them making no order at all or ordering that one party should pay the other party’s costs or even split costs. In deciding on the appropriate order to make the court will consider many factors including the conduct of the parties and steps taken by the parties to endeavour to settle the claim on a pre-action basis and/or by way of alternative dispute resolution (e.g. mediation).

Who ends up paying for a probate dispute?

The starting point with any litigation claims in relation to costs is that the loser pays the winner’s costs. If all parties are entitled to recover monies out of the estate this will usually mean that the costs will be taken from the losing party’s share of the estate, prior to its final distribution. However, in cases where a losing party is not entitled to any share of the estate and/or there are insufficient funds to cover the costs then that party will remain personally responsible for payment of the order for costs. Enforcement proceedings could, therefore, be taken against the losing party to recover the monies. Such proceedings could include a claim against that party’s personal assets.

Are there exceptions for costs in probate disputes?

For trustees who are bringing or defending a probate dispute claim, there is some protection available in relation to costs. Trustees risk having adverse costs orders made against them in probate disputes in the same way as any other party. However, they are often put in situations which mean they are compelled to bring proceedings in order to ensure that they can carry out their duties as a trustee.

In such circumstances, a trustee may apply to the court for what is known as a Beddoe order. If granted, the order protects the trustee from claims by beneficiaries that legal proceedings should not have been brought or defended.

Funding of probate disputes is handled on a case by case basis, to discuss how you can fund your claim please get in touch for an initial, no obligation discussion.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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