When estate disputes become legal battles, who foots the bill? This week, Nicola K Smith breaks down the options, sharing her specialist knowledge with practitioners to pass onto clients facing unexpected fees.
Legal disputes about estates are stressful enough but the question everyone asks is: How much will this cost me? And more importantly, who pays? Whether you’re a beneficiary, executor or solicitor advising either, understanding how litigation is funded (and protected) is key to acting decisively and safely.
- Estate disputes can get expensive
From contested wills to executor removal, legal costs can escalate quickly. Many families worry about:
- Personal liability for legal fees.
- Eroding the estate through conflict.
- Paying the other side’s costs if they lose.
Knowing when estate funds can be used – and when they can’t – can help avoid personal exposure.
- General rules on who pays
The general principle in litigation is that the losing party pays the winner’s costs. But probate litigation is different. Courts recognise the emotional stakes, long histories, and lack of clear information that often fuel these disputes.
Costs can be paid from the estate when:
- The dispute was caused by the testator (unclear will, questionable behaviour).
- A genuine question needed the court’s input.
- Executors acted reasonably and neutrally.
But courts won’t let costs come from the estate when:
- The claim was speculative or abusive.
- A party acted unreasonably or aggressively.
- Executors took sides or failed in their duties.
- What’s a Beddoe application?
If you’re an executor facing or considering litigation, you may be entitled to apply for a Beddoe order. This is permission from the court to use estate funds to:
- Defend a claim (for example, against the will or your conduct).
- Bring a claim (such as for asset recovery or debt enforcement).
A Beddoe order protects you from being personally liable for costs – and ensures you act with court-approved authority.
Top tip – apply early. Waiting too long or litigating first can lead to problems in recovering the costs.
- Beneficiaries – don’t assume you’ll be covered
If you’re a beneficiary bringing a claim, estate funding is not automatic. You need to prove your claim has merit, and even then, you may need to pay your own way unless:
- You win, and recover costs.
- The court orders your costs from the estate (rare).
No win, no fee or legal expenses insurance may help in some cases but these come with their own conditions and limitations.
- Funding options – what to know
Here’s a summary of common funding routes in estate disputes:
- Party – possible funding options.
- Executors – estate funds (with Beddoe).
- Beneficiaries – own funds/CFA/legal expenses insurance/third-party funding.
- Defendants – may recover costs if successful.
- Claimants – risk of costs if unsuccessful.
Getting early legal advice on funding is critical cost strategy can shape case strategy.
Final thoughts
Cost shouldn’t be a barrier to justice but it must be part of the discussion from day one. Whether you’re bringing a claim or defending one, the right funding and protection strategy can mean the difference between risk and resolution.
About the author
Nicola K Smith is a senior associate in the specialist Contentious Trusts, Probate and Court of Protection team at Forbes Solicitors, based in Manchester. With over 12 years of litigation experience, she now focuses exclusively on disputes involving the administration of estates, trusts and the affairs of vulnerable individuals.
