Courts dealing with estate disputes have discretion over whether legal costs are paid personally by the parties or met from the estate itself. The issue arises frequently in probate litigation, where beneficiaries, executors, and trustees may all face potential exposure to legal fees.
Under general civil procedure, the usual rule is that the unsuccessful party pays the successful party’s costs. Probate cases, however, follow a distinct and well established approach that allows courts to depart from that rule in defined circumstances.
When courts may order costs from the estate
Courts may permit legal costs to be paid out of the estate where the dispute is not attributable to the conduct of the parties. This includes cases where:
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The testator’s actions created uncertainty, such as through an unclear or inconsistent will
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There was a genuine legal question requiring judicial determination
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Executors acted neutrally and in accordance with their duties
In these situations, the court may treat the litigation as part of the proper administration of the estate rather than as adversarial proceedings between individuals.
When estate funding may be refused
Courts may refuse to allow costs to be paid from the estate where:
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A claim is speculative or lacks a proper legal basis
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A party acts unreasonably or pursues litigation unnecessarily
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Executors breach their fiduciary duties or take sides between beneficiaries
In such cases, costs may be ordered against the individual party rather than the estate.
Beddoe applications and executor protection
Executors who are considering litigation, or who are defending claims brought against the estate, may apply to the court for a Beddoe order. A Beddoe order authorises the executor to use estate funds to bring or defend proceedings and provides protection against personal liability for legal costs, provided the executor acts within the scope of the order.
The application is made to the court before substantive litigation proceeds and is determined on the basis of the information available at that stage.
Funding position of beneficiaries
Beneficiaries who bring claims do not automatically have access to estate funds to cover their legal costs. Even where a claim raises arguable issues, beneficiaries are generally expected to fund proceedings personally unless the court orders otherwise.
Courts may award costs to a successful beneficiary, but such orders are case specific and depend on the facts and procedural history of the dispute.
Established legal framework
The approach to costs in estate litigation reflects established probate principles rather than recent legislative change. Courts continue to apply existing rules governing costs discretion, executor duties, and the administration of estates when determining how legal fees should be allocated.
What this means
Parties involved in estate disputes may not bear costs in the same way as in ordinary civil litigation. Whether costs are paid personally or from the estate depends on the cause of the dispute, the conduct of the parties, and the role of executors in the proceedings. Courts retain discretion in each case, applying established probate principles.
When and where
This article is based on established probate law principles as reported and discussed in recent UK legal coverage on estate litigation costs.
