The answer to this question depends on the circumstances of each Will Challenge case. The general rule in Court proceedings is that the unsuccessful party must pay their own legal costs as well as the legal costs of the successful party.
However, in recent years this general rule has been modified by the Court in cases involving a contest or challenge to a Will, specifically in relation to whether the legal costs are paid by the Estate. There have been numerous Supreme Court decisions on this issue, which have produced a set of principles, that, when applied, determine if the legal costs are paid by the Estate:
If the circumstances of the case reasonably called for an investigation to be made before the Court could properly pronounce in favour of the Estate. This includes situations where the conduct and habits of the deceased have given ground for questioning the deceased's testamentary capacity (see Challenging a Will for more info).
If the deceased, or a person interested in the residue of the Estate, has by their conduct, caused the litigation to occur, the costs of a party unsuccessfully contesting the Will may be ordered out of the Estate.
The one exception to the principles stated above is where the Will is unsuccessfully challenged on the basis of fraud or undue influence (see Challenging a Will) and there were no reasonable grounds for the challenge. In these circumstances, the Court rarely orders that the unsuccessful parties' legal costs be paid by the Estate, which means the unsuccessful parties will have to pay their own legal costs.
If you are contemplating contesting a Will or challenging a Will, or you are an Executor who is faced with defending a Will, you should always seek legal advice before taking action so you can determine whether your legal costs are likely to be paid by the Estate. Contact our Contested Wills & Estates Team or send us a message using the form on the bottom of this page and we'll be able to advise you on this issue during your free appraisal.