Probate actions and family provision claims—costs
Produced in partnership with Adam Draper of Shoosmiths
Probate actions and family provision claims—costs

The following Wills & Probate practice note Produced in partnership with Adam Draper of Shoosmiths provides comprehensive and up to date legal information covering:

  • Probate actions and family provision claims—costs
  • The starting point—the general rule
  • The exceptions to the general rule
  • The Testator or the residuary beneficiaries have been the cause of the litigation
  • The circumstances lead reasonably to an investigation of the validity of the Will
  • Notice to cross examine the witnesses (CPR 57.5)
  • Undue influence
  • Family provision claims—conditional fee agreements
  • Costs budgeting
  • Part 36
  • More...

The legal costs position in probate claims is often misunderstood.

This Practice Note looks at:

  1. the costs in probate proceedings relating to the validity of the Will, and

  2. claims under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975)

The starting point—the general rule

The most common misconception is that the costs of the litigation will be paid by the estate. This is not correct.

CPR 44.2 applies to probate proceedings and I(PFD)A 1975 claims. Costs follow the event.

An unsuccessful litigant can expect to be ordered to pay some or all the successful party’s costs (CPR 44.2(2)) subject to the court’s discretion. That discretion allows the court to look at conduct.

Conduct (CPR 44.5) includes:

  1. conduct before and during the claim including the extent to which any pre-action protocol has been followed.

    There is no pre-action protocol for probate or I(PFD)A 1975 claims. Practitioners should consider the Practice Direction Pre-Action Conduct and Protocols and the ACTAPS Practice Guidance for the Resolution of Trust and Probate Disputes (the ACTAPS Code).

    The Code provides helpful guidance as to reasonable pre-action steps and disclosure obligations and it contains precedent letters.

    All practitioners should consider the sanctions which may be applied for a failure to engage in reasonable pre-action conduct. They include (Para 16 of the Practice Direction—Pre-Action Conduct and Protocols):

    1. an order that the party at fault pays the costs of

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