Costs of probate actions

At one time it was thought that the costs of all parties to an action to establish the validity of a will would be met from the estate. Recent case law has confirmed that there never was such a principle, and that in probate actions as in other litigation costs will normally follow the event. In other words the successful party’s costs will be paid by the unsuccessful party. There are, however, two exceptions in probate cases. One is where litigation has been caused by the testator or the beneficiaries. In this type of case, the court may order that all the costs be paid out of the estate. The other exception is where the facts justify an investigation into the validity of the will, in which case the parties may be left to pay their own costs. An unsuccessful claimant sought to argue that the latter principle should be applied in Cowderoy v Cranfield [2011] EWHC 2628 (Ch).