Can a Probate Caveat Lead to a Personal Costs Order?

Which Cost Are You Talking About?

A letter threatening “all costs and losses” may combine these categories. Ask which legal basis, expense, period and remedy are actually relied upon.

When Could a Personal Costs Order Arise?

For Registry applications dealt with on summons, NCPR rule 63 gives the Registrar power to decide who pays costs and to what extent. In contentious probate litigation, CPR Part 44 provides the general costs framework.

The court considers the circumstances, including whether issues were reasonably pursued, conduct before and during proceedings, settlement offers and engagement with appropriate dispute resolution. Losing a case is not the only consideration; nor does a genuine initial concern justify maintaining the same position indefinitely.

For example, relevant questions may include whether a person continued an unsupported allegation after receiving material evidence, caused avoidable procedural work or refused a reasonable opportunity to narrow the dispute.

An order for costs is not necessarily reimbursement of the whole bill. The amount and basis of assessment matter. Do not assume indemnity costs, or a particular sum, merely because someone describes the caveat as “wrong”.

Does the Estate Always Pay?

No. The existence of an estate fund does not guarantee that either party can charge their dispute costs to it. An executor’s entitlement to reimbursement depends on the capacity in which they act and whether the expenditure was properly incurred. Fighting over their own inheritance is different from properly administering the estate.

Probate costs can require a nuanced decision. In Marley v Rawlings (Costs) [2014] UKSC 51, the Supreme Court considered reasonable competing positions and a solicitor’s mistake, ultimately ordering the solicitor’s insurers to pay the parties’ costs on the terms explained in the judgment. That was not a caveat-removal decision, and it establishes no general promise that an estate or insurer will fund a dispute.

CPR 57.7(5) contains a particular costs protection for a defendant who gives the prescribed notice requiring proof of a will without raising a positive case. It is qualified by the absence of reasonable grounds for opposition. It is not blanket protection for entering a caveat.

When Should the Basis for the Caveat Be Reassessed?

• When the complete will, drafting information or other material evidence becomes available.
• When the concern is actually about accounts, financial provision or a distribution rather than a proper objection to the Grant.
• Before an Appearance, summons, renewal or other step adds further expense.
• When the original concern has narrowed, changed or been answered.
• When a focused information exchange, negotiation or mediation could protect the relevant interest at less cost.

A caveat can allow a genuine probate concern to be investigated. It does not establish the merits of that concern. Equally, its removal does not automatically prove that entering it was unreasonable from the outset.

Cases can involve several distinct issues. A threatened Inheritance Act claim may coexist with a separate will-validity concern; each needs the appropriate procedure.

Why Does the Appearance Stage Matter Financially?

Under NCPR rule 44, a caveator who has entered an Appearance cannot simply withdraw the caveat by the ordinary notice route. Removal then needs the appropriate order or procedural disposal. Agreement between parties still needs to be implemented correctly.

A warning therefore deserves assessment from both sides. The caveator should not enter an Appearance just to gain time; the executor should not issue a warning on the assumption that removal will be quick or cheap.

If a warning has been served, check the response timetable promptly. See the warning response guide for the procedural detail. This costs guide does not replace it.

Worked Example: Delay Costs Are Not Automatically Damages

Keep actual invoices, dates and reasons for delay. Distinguish unavoidable administration time from additional delay attributed to the dispute. Use the carrying-cost calculator to organise estimates, not to calculate someone’s legal liability.

What Should Each Side Gather Before Spending More?

• The will, relevant entitlement and the precise objection to the Grant.
• The caveat record, warning, service evidence, Appearance, summons and any order.
• A dated record of information requested, supplied and still missing.
• Actual estate bills, proposed legal fees and any offer to resolve the issue.
• A clear objective for the next step and the evidence it is expected to establish.

For the executor’s initial response and Justin’s video on warning decisions, read the caveats guide. Do not make unsupported threats that all estate losses will automatically be recovered personally.