Skip to main content
WUHLD
← Back to glossary

Costs Order

Also known as: Legal Costs, Court Costs Award

Definition

A costs order is a court's decision about who pays the legal bills after a dispute, usually requiring the losing party to pay both sides' costs, which can total £50,000 or more.

Understanding costs orders is essential before challenging a will—you could face substantial financial liability beyond the value of your potential inheritance.

What Does Costs Order Mean?

When a will dispute goes to court, the judge makes a costs order determining which party must pay the legal expenses incurred during proceedings. Under the Civil Procedure Rules 1998, Part 44.2, the general rule states that "the unsuccessful party will be ordered to pay the costs of the successful party." This principle is known as "costs follow the event"—the loser pays. These costs include solicitors' fees, barristers' fees, court fees, and expert witness fees. The court typically assesses costs on the standard basis, meaning reasonable and proportionate costs are recoverable.

In probate disputes, these costs are substantial. A typical contentious probate case lasting three days in court can generate total legal costs of £70,000–£100,000 or more. If you challenge a will and lose, you'll pay your own solicitor's bill (perhaps £35,000) plus the other side's costs (another £40,000). Sarah unsuccessfully challenged her father's will claiming undue influence. She was ordered to pay her own costs (£35,000) plus her brother's legal costs (£40,000)—total liability of £75,000, far exceeding the £20,000 legacy she'd hoped to increase.

However, two key exceptions exist in probate disputes where the estate might pay everyone's costs instead. First, when the testator's conduct caused the litigation, courts may order the estate to pay all parties' costs. David made four contradictory wills in his final six weeks while seriously ill, creating confusion. When his daughter Emma lost her case defending the final will, the judge ordered the estate to pay both sides' costs because David's confusing will-making necessitated the litigation. Second, when there were reasonable grounds for investigating the will's validity, the court may make no costs order or direct the estate to pay. Emma challenged a will on capacity grounds with medical evidence of dementia. Despite losing, the court made no costs order because the challenge was reasonable, so each side paid their own costs.

Executors acting in their official capacity are entitled to recover their reasonable legal costs from the estate under Civil Procedure Rules Part 46.3. Margaret was executor of her aunt's £450,000 estate. When a distant cousin threatened to challenge probate with an invalid document, Margaret took legal advice costing £8,500 to defend the estate. She recovered these costs from the estate because she was acting in her official executor capacity, not pursuing a personal claim. However, this protection only applies when executors act properly in their official role—not when they pursue personal claims as beneficiaries.

Common Questions

"Who pays legal costs when someone contests a will?" Generally, the losing party pays both their own legal costs and the winner's costs (known as 'costs follow the event'). However, if the testator's conduct caused the dispute or there were reasonable grounds to investigate, the court may order all parties' costs be paid from the estate instead.

"Does the estate automatically pay legal costs in probate disputes?" No, this is a common misconception. In most probate disputes, the standard rule applies: the unsuccessful party pays the winner's costs. The estate only pays if the court makes a special costs order, typically when the testator's actions caused the litigation or when the dispute required reasonable investigation.

"Can an executor recover their legal costs from the estate?" Yes, executors acting in their official capacity (not pursuing a personal claim) are generally entitled to recover their reasonable legal costs from the estate. This applies when they're fulfilling their duties or defending the estate, but not when they're acting in their personal interest as a beneficiary.

Common Misconceptions

Myth: "The estate always pays the legal costs in probate disputes, so there's no financial risk in challenging a will."

Reality: In most probate disputes, the standard "loser pays" rule applies. The unsuccessful party is ordered to pay both their own legal costs and the winner's costs, which can total £50,000–£100,000 or more. The estate only pays in exceptional circumstances, such as when the testator's conduct caused the litigation or when the challenge was based on reasonable grounds. You can be personally liable for substantial legal bills if your will challenge fails.

Myth: "If I have good reasons to challenge a will, I won't have to pay any costs even if I lose."

Reality: Having "reasonable grounds" to challenge a will may help avoid an adverse costs order, but it's not guaranteed protection. The court must be convinced that circumstances reasonably led to investigating the matter. Even with medical evidence or witness statements, you could still be ordered to pay costs if the court finds your challenge was pursued unreasonably or you rejected reasonable settlement offers.

  • Will Challenge: The process of contesting a will's validity, where costs orders determine the financial stakes and potential liability.
  • Contentious Probate: Disputes over estates where costs orders govern who pays legal expenses, often exceeding the disputed inheritance value.
  • Settlement: Negotiated resolution of disputes, often driven by the risk of adverse costs orders if litigation proceeds to trial.
  • Litigation: Court proceedings where costs orders determine financial consequences, with the losing party typically paying both sides' legal bills.
  • Estate Costs: Legitimate administration expenses payable from the estate, distinct from litigation costs governed by costs orders.

Need Help with Your Will?

Creating a clear, legally binding will helps prevent the costly disputes that trigger costs orders. A well-drafted will reduces the risk of challenges based on ambiguity or unclear intentions, protecting your beneficiaries from potentially devastating legal expenses.

Create your will with confidence using WUHLD's guided platform. For just £99.99, you'll get your complete, legally binding will plus three expert guides. Preview your will free before paying anything—no credit card required.

Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.