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Even if an individual leaves a will, it does not mean that their wishes will always be followed.

Potential beneficiaries could challenge a will for several reasons.

They could, for example, question capacity issues with the testator, the possibility of undue influence being placed on the testator, the chance that the will has been forged or simply the level of provision left to them.

Who pays the costs of disputing a will?

The general rule in litigation cases is that the loser will pay the winner’s costs. However, probate litigation has created two exceptions to this rule:

  1. If a dispute is determined to be the ‘fault’ of the deceased, (if, for example, the deceased did not leave a will or excluded a beneficiary with no valid explanation), the court may decide that the costs should be recovered from their estate; or
  2. If a claimant is ultimately unsuccessful but can prove that there were justifiable grounds for doubting the will, the court may rule that each involved party covers their own legal costs.

How does the court decide who pays for disputing a will?

The court has a wide discretion to deviate from these exceptions.

Unless an agreement can be reached between the involved parties, the court will ultimately make the final decision.

For example, the court could order the estate to bear the entire cost, each party could be required to cover their own costs or the costs could be divided between all those involved in the dispute.

Consideration will be given to any offers made to settle during the proceedings but the court will not allow those offers to influence its decision if they would lead to an unjust result.

Ultimately, the prospect of being faced with covering the cost of the legal fees should not prevent potential beneficiaries from pursuing a valid dispute.

However, it is often more sensible and cost-effective to settle a dispute out of court and proceedings should be considered as a last resort, if that is possible.



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