The one certainty of litigation, regardless of the type, is that is it costly to all parties who participate in it. When contesting or defending a Will in the context of probate litigation, there are exceptions wherein the Estate may pay counsel fees for the defense of the Will, the party prosecuting to invalidate a Will, or for both parties. This issue is important for all parties to consider in deciding whether to contest a Will or to vigorously defend one.
In general, the party which is defending the Will is entitled to be reimbursed by the Estate for any and all counsel fees it incurs in defending the Will. On the other hand, a party contesting a Will will generally bear their own counsel fees unless they are able to demonstrate to the Court a reasonable and rational basis for bringing their challenge to the Will. Should a party challenging a Will be able to demonstrate this, then in that event, they can make an application to the Court for counsel fees and may be awarded counsel fees at the conclusion of the case.
Regardless as to whether a plaintiff may succeed in a fee application, it should be noted that the Court often reduces the amount of fees which a plaintiff may be entitled to regardless of the nature of the fee application. Likewise, a party who is defending a Will could potentially have the counsel fees they wish to pay their attorney reduced should a party challenge the reasonableness of these fees.
Another important issue for all parties to consider is the value of the Estate when challenging a Will. Obviously, if it is a small Estate it does not make sense for the parties to expend massive fees in litigation. On the other hand, if it is an extremely valuable Estate the parties may be more inclined to litigate more aggressively. This is yet another factor the parties should consider when deciding whether to contest or defend a Will.