If you are thinking of contesting a Will, you might be wondering how you can fund the legal expenses of your claim. Even if you believe you have a very good case, you may simply not have the spare funds to pay a solicitor up front.
The first thing to remember is that many of these cases do not go to court. Solicitors on each side will usually explore settlement options and cooperate where possible to resolve matters promptly. Mediation or other forms of alternative dispute resolution (ADR) are common in Will disputes and can help avoid unnecessary legal costs. Employing the services of an experienced solicitor in this area can also go a long way toward reaching an early resolution.
There are a number of funding options for contesting a Will, as outlined below.
No win, no fee (conditional fee agreements)
You’ve probably heard of ‘no win, no fee’ arrangements. Under this type of agreement, you do not pay any solicitors’ fees up front, and if you lose your case you generally won’t have to pay your solicitor’s fees at all. The most common form is a Conditional Fee Agreement (CFA). With a CFA, the solicitor’s charges are only payable if you win the case. (Another form, explained further below, is a Damages-Based Agreement, where the solicitor’s fee is a percentage of what you recover.)
Importantly, even under a CFA you might still be responsible for certain expenses if the case doesn’t succeed. These additional expenses, known as disbursements, include things like court fees, barristers’ fees, or expert report fees. Sometimes your solicitor can defer these or arrange insurance to cover them (more on insurance later), but it’s something to clarify at the outset.
If you win your case, the general rule is that the losing side will be ordered to pay a significant part of your legal costs. However, they will likely not cover all of your costs. Any remaining costs and the success fee under the CFA would come out of the money or assets you win from the case (for example, from your share of the estate). Your solicitor will agree a cap or percentage limit with you in advance so you know the maximum portion of your winnings that might be taken as fees. Unlike personal injury cases (which have a statutory 25% cap on success fees), in inheritance and other civil claims there’s no fixed cap by law on the success fee. In theory, it could be as high as 100% of the base legal costs (effectively doubling the fees), but in practice solicitors will agree on a reasonable percentage with you at the outset.
Changes to CFAs in inheritance claims: Since 18 December 2024, a UK Supreme Court ruling has made it clear that CFA success fees cannot be included (either directly or indirectly) in the award given under an Inheritance Act claim. In other words, if your claim is under the Inheritance (Provision for Family and Dependants) Act 1975 and you win, the success fee must be paid out of your own entitlement, not added on for the other side or the estate to pay. This is an important consideration, because it means a ‘no win, no fee’ arrangement could reduce what you ultimately receive from the estate if you are successful.
Solicitors cannot take every case on a no win, no fee basis. Understandably, they need to be reasonably confident that you have a strong chance of winning – otherwise they risk not being paid at all. Your solicitor will assess the merits of your claim and let you know whether this type of funding is possible. Sometimes they may need to do some initial investigation work before deciding, and they might ask you to contribute to the cost of that preliminary work (there is no obligation to proceed if you don’t want to).
Damages-based agreements (percentage fees)
A Damages-Based Agreement (DBA) is another form of ‘no win, no fee’ arrangement. Under a DBA, your solicitor’s fee is directly tied to the result – they take an agreed percentage of the sum or assets you recover if you win the case. If you lose, you generally pay nothing (again, you may still be liable for disbursements unless those are separately covered).
DBAs are legally allowed in probate and Will dispute cases, but they are not commonly used in this area. One reason is that many Will disputes don’t involve a straightforward payment or lump sum being awarded to the winner. For example, if the dispute is about the validity of a Will, the outcome might simply be a court declaration as to which Will is valid, rather than a specific sum of money being paid to you. In a recent case, a court found that a DBA was unenforceable in a Will challenge because there were no “sums recovered” as required by the DBA regulations. In short, DBAs tend not to suit situations where the remedy isn’t a clear financial award.
Where a DBA is appropriate (typically when the case is about obtaining a certain sum or share of an estate), there are caps on the percentage a lawyer can take. The cap is usually 50% of the recovery in most civil cases (with lower caps of 35% in employment cases and 25% in personal injury cases). Your solicitor will advise you if a DBA is viable for your claim and will ensure any DBA complies with the legal requirements.
After the event (ATE) insurance
After the Event insurance is a common accompaniment to a no win, no fee arrangement. ATE insurance is a policy you can take out after a dispute has arisen, in order to protect yourself against the risk of having to pay costs if your case is unsuccessful. Specifically, ATE insurance can cover the opponent’s legal costs that you might be ordered to pay if you lose, and often it can cover your own disbursements (like court fees, expert fees, and other expenses).
An ATE premium (the cost of the insurance policy) can be significant, but the good news is that it usually does not need to be paid up front. Most ATE policies are on a deferred basis, meaning you only pay the premium if you win the case (it’s often deducted from your winnings). If you lose, typically you don’t have to pay the premium at all. Keep in mind that due to legal reforms, these insurance premiums are generally not recoverable from the other side. So even if you win, the premium will likely come out of your share of the estate or funds you recover.
ATE insurance gives peace of mind that, win or lose, you won’t be hit with a large bill for the other side’s costs. Your solicitor can help you find a suitable ATE policy and explain how it works as part of your funding arrangement.
Fixed fees
It is unlikely that a solicitor could handle an entire Will dispute on a single fixed fee, because the scope and duration of these cases can be hard to predict. However, many solicitors can offer fixed fees for specific stages or tasks within the case. For example, your lawyer might agree to a fixed fee for an initial consultation and review of the case, or for writing a formal letter to the other party to gather information about the Will or outline your claim.
Fixed fees give you certainty about the cost for that piece of work. Once that stage is completed, you can then decide on the next step with a clearer idea of what it might cost. Do not hesitate to ask your solicitor if any parts of the work can be done for a fixed fee – it can make budgeting easier and avoid surprises.
Hourly rates
Paying a solicitor by hourly rates is the traditional model for legal services. The solicitor will record the time spent on your case (for example, phone calls, drafting documents, meetings, etc.), and you are charged according to their hourly rate for the actual time taken. With an hourly rate arrangement, you only pay for the work that is actually done, but it can be harder to predict the total cost at the outset.
Good firms will provide an estimate of the likely time and cost for each stage of a case, and they should update you as the case progresses. This way, you can budget for each phase and make informed decisions. If your case is relatively straightforward, or if you only need a solicitor for certain tasks, an hourly rate arrangement might work well. Always ensure you understand the hourly rate and get regular billing updates so you stay on top of costs.
Legal expenses insurance (before the event)
Many people are surprised to discover that they might already have help available for legal costs through their existing insurance policies. This is known as legal expenses insurance, or “before the event” insurance. It is often included as an extra with home insurance, car insurance, or even some premium bank accounts or credit cards.
If you have a policy like this, it may cover the legal costs of a Will dispute (subject to the policy’s terms and the insurer’s approval). Typically, the insurer will require that the case has reasonable prospects of success before agreeing to fund it. If they do agree, the insurer might pay your solicitor’s bills (or appoint their own panel solicitor to handle your case under the policy). It’s worth checking your insurance documents or asking your insurance provider if you have this cover, as it could significantly reduce the financial burden of contesting a Will.
Legal aid
Legal aid (government funding) for contesting a Will or making a claim under the Inheritance Act is generally not available. In the past, legal aid was more widely accessible, but reforms in 2012 removed most private inheritance disputes from the scope of legal aid.
Only in extremely rare circumstances (via something called exceptional case funding) might someone secure legal aid for this kind of case. As such, you should not expect to be able to rely on legal aid for a Will contest – you will likely need to consider one of the other funding methods discussed above.
Who pays the costs if you win or lose?
One common concern is who will end up paying the legal costs at the end of the case. The usual rule in civil litigation (including Will disputes and Inheritance Act claims) is that the losing party has to pay the winning party’s costs. However, even if you win, you will typically only recover a portion of your legal costs from the other side – often something like 60% to 80%, depending on the court’s assessment. The remainder of your costs would need to come out of whatever you obtain as a result of the case (for instance, from your share of the estate).
There are some exceptions in probate cases where the estate itself might be ordered to pay the costs of the case. Historically, courts have sometimes decided that if the dispute was caused by the person who made the Will (for example, through unclear wording or creating suspicious circumstances), or if the dispute was a reasonable one to bring (for example, a genuine uncertainty about which Will was valid), then it was fair for the estate to bear the legal costs of both sides. These situations are rare, and modern courts are cautious about straying from the normal ‘loser pays’ rule. In most cases, the standard costs rule will apply – meaning if you lose, you should expect to be responsible for the other side’s costs, and if you win, the other side will have to pay a good portion of your costs (but probably not all of them).
Contesting a Will can be complex and potentially expensive, but understanding your funding options can make it more manageable. Always discuss with your solicitor what funding method might be best for you, and make sure you’re clear on what happens with costs in different scenarios. With the right approach – and often with a focus on early settlement – you can pursue your claim with more confidence about the financial implications.
Jennifer Wiss-Carline is a practising Solicitor regulated by the SRA and a Chartered Legal Executive (FCILEx), bringing over two decades of experience to her practice. Specialising primarily in Private Client law, Jennifer expertly handles matters including Wills, Inheritance Tax and Estate planning, Lasting Powers of Attorney for individuals and businesses, Deputyship Orders and more.
