Every contested estate consultation reaches the same question within the hour: who pays for all this? Probate litigation carries an old reputation for costs out of the estate, win or lose, and the reputation is dangerously out of date. The modern position is closer to ordinary litigation than folklore suggests, and strategy should be built on the modern position.
The traditional exceptions
The probate tradition recognises situations where an unsuccessful party is not simply condemned in costs: where the litigation was caused by the testator's own conduct, a will made in doubtful circumstances, papers in disorder, capacity genuinely uncertain, costs may be allowed from the estate; and where the circumstances reasonably called for investigation, an unsuccessful but reasonable challenger may at least escape paying the other side. These exceptions are real, discretionary and narrower than hoped: they reward reasonable inquiry into genuine doubt, not speculative attack.
The modern discipline
Courts now apply general costs principles, costs follow the event, conduct matters, offers matter, to probate as elsewhere, and unreasonable positions are punished wherever they sit: the challenger who pressed a hopeless case after the records were exchanged, the estate that refused mediation of a plainly arguable claim, the party whose conduct inflated the hearing. Open offers and mediation invitations are costs weapons as much as settlement tools, and their timing should be planned as such.
Strategy in the shadow of costs
The practical consequences are direct. Assess early and honestly, because the exceptions protect reasonable inquiry, not persistence past the point the evidence turned. Front-load the record review, the solicitor's file and medical records decide most capacity and influence cases, and their contents should decide yours before pleadings do. Treat settlement windows seriously, since estates are finite and every hearing day is paid from the thing being fought over. And remember the LSRA baseline that applies to all contentious business: costs cannot be charged as a percentage of what is recovered, and any suggestion otherwise should end the conversation.
This article is general information, not legal advice. For the full practice area, see Contested Wills and Probate Litigation, or contact the practice to discuss a matter in confidence.