The costs exceptions in probate cases

03/03/2026

By Nicholas Evans

In this article, Nicholas Evans provides an update on potential costs consequences in contentious probate cases following the High Court decision of Tucker v Felton-Page [2025] EWHC 530 (Ch) last year. Nicholas acted for the Claimant who discontinued her claim after her expert changed his opinion and agreed with the First Defendant’s expert that the deceased lacked capacity, torpedoing the claim. Nicholas successfully argued that the Claimant should only be liable for costs following the change in the Claimant’s expert opinion and that it had been reasonable for the Claimant to bring her claim until that point. All attempts for permission to appeal have now been dismissed.

The costs exceptions in probate cases

1. It is not open to question that the general rule on costs (the unsuccessful party pays the costs of the successful party) applies to contentious probate cases and that parties may still make arguments about whether the court should depart from the general rule. However, it is often overlooked by litigators that there are two exceptions to the general rule that only apply to probate disputes. These were succinctly outlined by Mrs Justice Smith in Leonard v Leonard [2024] EWHC 979 (Ch) at [13], by reference to earlier cases of Kostic v Chaplin [2007] EWHC 2909 (Ch) and Perrins v Holland [2009] EWHC 2556 (Ch), as follows:

“The exceptions “allow good cause to be shewn why costs should not follow the event” and require the court to ask:

• i) whether the litigation was caused by the testator or a beneficiary. If so, the court may order the unsuccessful party’s costs to be ordered out of the estate;

• ii) whether the circumstances, including the knowledge and means of knowledge of the opposing party, led reasonably to an investigation of the matter. If so, the court may make no order as to costs.”

2. Both of these long-established exceptions predate the introduction of the CPR but the court is required to take them into account when exercising its discretion. Indeed, the rule as set out in CPR 57.7(5) may be taken as an example of the second exception, this states as follows:

• “(5) (a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.

• (b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.” (emphasis added)

3. The reasons behind these exceptions are helpfully outlined in Leonard at [14]. In relation to the second exception, and r.57.7(5)(b), Smith J emphasised that a party should not be punished in costs in the usual way as there is a public interest that reasonable suspicions about a will be raised and require a will to be proved in solemn form.

4. Finally, it is important to note that in cases where either the first or second exceptions apply, there may still nonetheless be a point at which the litigation becomes ordinary hostile litigation and the general rule should apply.

Costs consequences on discontinuance

Background

5. In Tucker, the Claimant brought a claim seeking that the latest will of the deceased be propounded for. The First Defendant opposed the claim on the basis that, inter alia, the deceased lacked capacity and counterclaimed seeking that an earlier will be propounded for.

6. The claim proceeded in the usual way with both parties obtaining expert reports that supported their own position. However, following the expert’s meeting to narrow the issues, the Claimant’s expert unexpectedly revised his opinion and agreed wholesale with the First Defendant’s expert. The Claimant tried to recover the position by making an application to ask further questions of the First Defendant’s expert. Unfortunately, this failed leaving the Claimant with little choice but to discontinue her claim, which she then did. There was then a trial on the papers during which the older will was propounded for.

7. The decision for HHJ Berkley then became what order as to costs should be made, having regard to the fact that the Claimant had discontinued the claim and the First Defendant had been successful on their counterclaim.

Decision

8. HHJ Berkley held that whilst r.57.11 applied, which disapplied r.38.6 (automatic costs on discontinuance) and provided that costs may be ordered “on such terms as [the court] thinks just”, it was the practice of the court to hold that there was a presumption that the discontinuing party should pay the costs of the claim unless the court could be persuaded otherwise.

9. The judge then went on to cite Leonard at length and retracing the older authorities before finding that starting point was that the general rule applied unless the court could be persuaded to depart from the general rule, in this case on the basis of the second exception.

10. HHJ Berkley highlighted that each case would likely be very fact-specific and found that it had been reasonable for the Claimant to bring her claim and that it had been reasonable for her to continue pursuing the litigation until the experts disagreed after which point the litigation became ordinary hostile litigation. In coming to such a conclusion, the judge placed reliance on the fact that the Claimant had expert evidence in support, as well the deceased’s former solicitors (the Third Defendant) supporting her claim.

Conclusion

11. The above cases demonstrate that lawyers and clients should be aware that costs consequences, even for a winning party, are unlikely to be straightforward. Clients face the risk of potentially not recovering a significant portion of their costs despite being successful. It also shows the importance of clients acting reasonably both prior to and during probate disputes with such actions likely to be rewarded.