The Allocation of Legal Costs in Will Contests: A Comprehensive Guide for Prospective Litigants

Part I: Foundational Principles of Cost Allocation in Estate Litigation

The decision to contest a will is a significant undertaking, fraught with emotional and financial complexities.

Central to this decision is a critical question: who bears the financial burden of the ensuing legal battle? The answer is not uniform and varies dramatically across jurisdictions, governed by deeply rooted legal principles that define the initial risk profile for any potential challenger.

In North America, two primary, and often conflicting, philosophies dictate the allocation of legal costs: the “American Rule,” prevalent in the United States, and the “Loser Pays” principle, which is the standard in Canada.

Understanding this fundamental dichotomy is the essential first step for any individual contemplating a challenge to a testamentary document.

The “American Rule” – The Default Stance in the United States

The default legal framework governing attorney’s fees in the United States is known as the “American Rule.” This long-standing principle dictates that each party involved in a civil lawsuit is responsible for paying its own legal costs, irrespective of the outcome.¹

In the context of a will contest, this means that the individual challenging the will (the “contestant” or “challenger”) must initially pay for their own legal representation, while the estate, represented by the executor or personal representative, funds its own defense from the estate’s assets.⁵

Jurisdictions such as New York and Indiana explicitly adhere to this rule as their starting point.¹

The public policy rationale underpinning the American Rule is the preservation of access to justice.

The legal system is structured to avoid discouraging individuals who genuinely and in good faith believe they have been wronged from seeking recourse in the courts.⁴

The fear of being saddled with the opposing party’s potentially substantial legal fees could have a chilling effect, preventing meritorious claims from ever being heard.

The system relies on other mechanisms, such as rules against frivolous litigation, to protect defendants from baseless lawsuits.⁴

For a prospective challenger, the immediate implication of the American Rule is the necessity of being financially prepared to initiate and sustain the litigation.

Most probate attorneys work on an hourly basis and require a significant upfront payment, known as a retainer, before commencing work.¹

This initial financial outlay represents the challenger’s primary risk at the outset of the case.

However, it is a critical error to view the American Rule as the final word on cost allocation in estate litigation.

While it establishes the default position, it is more accurately described as a rebuttable presumption rather than an ironclad conclusion.

The body of law surrounding will contests is replete with powerful and frequently invoked exceptions that can shift the burden of costs.¹

In this specialized field, the legal battle over who pays is often not about the rule itself, but about whether a party’s actions and the facts of the case fall within one of these established exceptions.

Therefore, a challenger’s legal strategy, from the very first consultation with an attorney, should be meticulously crafted to frame the contest in a way that aligns with the criteria for a cost-shifting exception.

The operative question is not merely “Can I afford to pay my lawyer?” but rather, “Can I prove my case is of a nature that the estate should rightfully bear the costs of uncovering the truth?”

The “Loser Pays” Principle – The Contrasting Approach in Canada

In stark contrast to the American system, Canadian provinces such as Ontario and British Columbia operate under a “loser pays” principle, also known as the “English Rule”.⁹

Under this framework, the court, at the conclusion of the litigation, will typically issue a “costs award,” ordering the unsuccessful party to pay a significant portion of the successful party’s legal fees.⁸

This approach is informed by a modern judicial trend in Canada that views most estate litigation as adversarial in nature.⁸

Historically, courts were more inclined to have the estate bear all parties’ costs, operating on the rationale that the litigation was often caused by the testator’s actions, such as creating an ambiguous will.⁸

The contemporary view, however, is that litigants in will contests are typically pursuing their own personal financial interests in the inheritance, and as such, they should bear the financial risks associated with their claims.⁸

A crucial nuance in the Canadian system, absent in its American counterpart, is the existence of different scales of cost awards, known as indemnification levels.

These levels determine the percentage of the winner’s legal fees that the loser must pay:

• Partial Indemnity: This is the most common or “normal” level of cost award. It provides for the recovery of approximately 20% to 40% of the successful party’s actual legal fees.⁹ This means the winner still bears a substantial portion of their own costs.
• Substantial Indemnity: This is a higher, more punitive award, covering roughly 50% to 80% of the winner’s actual fees.⁹ This level is often awarded to sanction inappropriate or unreasonable litigation conduct or, significantly, when a party rejects a formal settlement offer made under court rules (like Ontario’s Rule 49) and then fails to achieve a better result at trial.⁹
• Full Indemnity: This award, covering 100% of the winner’s fees, is rare in estate litigation and typically reserved for situations where a prior contractual agreement between the parties provides for it, such as in mortgage or loan agreements.⁹

The “loser pays” principle creates a fundamentally different and more perilous risk profile for a challenger compared to the American system.

In the United States, the primary financial risk is largely confined to one’s own legal expenditure.

In a Canadian province like Ontario or British Columbia, the potential downside is magnified significantly: a losing challenger is responsible for 100% of their own legal fees plus a substantial portion—potentially up to 80%—of the estate’s legal fees for defending the will.⁹

This asymmetrical risk acts as a powerful deterrent against speculative or weak claims.

Consequently, a challenger in a “loser pays” jurisdiction must possess not only an exceptionally strong case but also a high tolerance for financial risk.

The decision to proceed with a contest is more fraught, and the incentive to negotiate a settlement is present at a much earlier stage and with greater urgency.¹

The strategic deployment of formal settlement offers to manage and mitigate potential adverse cost awards becomes a central and critical element of the litigation strategy from the very beginning.

Table 1: Comparative Overview of Cost Allocation Rules

Jurisdiction	Default Principle	Initial Burden on Challenger	Potential Liability if Unsuccessful
New York, USA	American Rule 1	Pays own legal fees and costs.1	Pays own legal fees. May be ordered to pay estate’s fees only if the claim is deemed frivolous.12
California, USA	American Rule 3	Pays own legal fees and costs.5	Pays own legal fees. May be ordered to pay estate’s fees if contest was “without reasonable cause and in bad faith”.13
Ontario, Canada	Loser Pays 9	Pays own legal fees and costs.9	Pays own legal fees PLUS a portion (typically 20-40%, but up to 80%) of the estate’s legal fees.9
British Columbia, Canada	Loser Pays 10	Pays own legal fees and costs.10	Pays own legal fees PLUS some or all of the estate’s legal costs.10

Part II: Shifting the Burden: When the Estate Pays

While the default rules establish the initial financial landscape, the most critical area of law for a prospective will contestant lies in the exceptions that allow for a shifting of the legal cost burden.

In numerous, well-defined circumstances, a court can order the decedent’s estate to pay the legal fees of the executor, the challenger, or even all parties involved.

Success in a will contest is often measured not just by winning the case, but by who ultimately bears the expense of the fight.

This section explores the key doctrines that can transform a privately funded challenge into one paid for by the estate itself.

The Executor’s Right to Indemnification

The executor of an estate, also known as the personal representative, occupies a unique position in a will contest.

This individual is named in the will as the fiduciary tasked with carrying out the testator’s instructions.

As such, the executor has a legal duty to defend the validity of the will they have been nominated to administer.¹

This duty is not merely passive; it requires the executor to take active steps to propound the will and respond to any challenges.

Corresponding to this fiduciary duty is a powerful right: the right to indemnification.

An executor is generally entitled to be reimbursed from the estate’s assets for all reasonable legal fees and expenses incurred in the good faith defense of the will.¹

These legal costs are treated as a necessary expense of administering the estate, akin to paying the decedent’s final taxes or debts.⁷

This right gives the estate, as the defending party, a significant financial advantage, as it can draw upon the collective assets to fund its legal battle.

However, this right to reimbursement is not absolute.

It is subject to a critical limitation: the executor must act in “good faith” and for the benefit of the estate, not solely for their own personal gain.⁷

An executor who is found to have acted in bad faith, or who is proven to have procured the will through their own wrongdoing—such as undue influence or fraud—may be stripped of this right.

In such cases, a court can deny the executor reimbursement from the estate, forcing them to pay for their legal defense personally.¹

The Ohio case In re: Estate of Szczotka provides a compelling illustration of this principle in action.¹⁸

In that case, the executor was also a primary beneficiary under the contested will.

After the will was invalidated due to the testator’s lack of capacity and undue influence, the court had to decide if the executor’s legal fees for the unsuccessful defense should be paid by the estate.

The court’s decision, which was ultimately appealed and resulted in a split opinion, hinged on whether the executor was acting to defend the will for the benefit of all its named beneficiaries (as the will intended) or was simply using estate funds to protect his own personal inheritance.

The majority found that because the will provided for another beneficiary besides the executor, the defense was for the benefit of the “entire estate” as contemplated by that document.

The dissent, however, argued that the executor’s personal interest was so overwhelming that he was acting for his own benefit, not the estate’s.

This case vividly demonstrates how fact-sensitive and contentious this issue can be.

This “good faith” limitation creates a powerful strategic opportunity for a challenger.

When the executor is also a major beneficiary under the will being contested, an inherent conflict of interest arises.

The executor is in the position of using shared estate funds—assets that would otherwise go to the challenger if they are successful—to finance the defense of their own personal inheritance.

A savvy challenger can leverage this conflict.

By pleading and diligently gathering evidence that the executor is acting in their own self-interest and not in good faith, the challenger can file motions with the court seeking to prohibit the executor from using estate funds for their legal defense.

Successfully cutting off the executor’s access to estate funds can dramatically level the financial playing field, placing immense pressure on the executor-beneficiary to consider a settlement, as they would otherwise face the daunting prospect of funding a costly legal defense out of their own pocket.

The “Benefit to the Estate” Doctrine

Perhaps the most significant exception for a challenger is the “benefit to the estate” doctrine.

Under this principle, a contestant who was initially paying their own legal fees can petition the court to have those fees reimbursed from the estate’s assets, provided their legal action is deemed to have conferred a significant benefit upon the estate.¹

The concept of a “benefit” in this context is broad and extends beyond merely increasing the estate’s monetary value.

A benefit is conferred when the challenger’s actions serve to protect the integrity of the estate and ensure the decedent’s true testamentary wishes are carried O.T.¹

Concrete examples of actions that have been found to benefit an estate include:

• Exposing Wrongdoing: Successfully proving that a will was the product of fraud, forgery, or undue influence, thereby preventing the estate’s assets from being distributed to a wrongdoer and instead directing them to the rightful heirs.¹
• Restoring a Valid Will: Causing a court to set aside an invalid later will and probate an earlier, valid one, thus ensuring the assets are distributed according to a legitimate testamentary plan.¹
• Clarifying Ambiguity: Initiating a proceeding that forces the court to interpret an ambiguous clause in a will, thereby providing clarity and certainty for the administration of the entire estate and all its beneficiaries.⁸
• Recovering Assets: Bringing an action that results in assets that were improperly diverted or hidden being returned to the estate for proper distribution.

The core logic of this doctrine is that the challenger, through their efforts and personal expense, has acted as a “private attorney general” for the estate.¹⁹

They have performed a service that the court and the rightful beneficiaries have benefited from—the service of ascertaining the truth and upholding the law.

As the Mississippi Supreme Court noted, courts exist to determine the truth, and a party who brings a good-faith suit to ascertain the validity of a will helps the court fulfill this fundamental purpose.²⁰

It is crucial to frame the argument for fees under this doctrine correctly.

The “benefit” is to the testator’s true intent and the integrity of the probate process, not necessarily to the estate’s bottom line.

A successful challenge that results in the disinheritance of a wrongdoer and the inheritance of the rightful family members is a profound benefit to the estate, even if the total dollar value of the estate remains unchanged.

The argument for fees should be centered on justice and the fulfillment of the decedent’s actual wishes.

For example, a challenger might argue: “This legal action did not create new assets, but it conferred the invaluable benefit of ensuring this estate passes to the decedent’s children as intended in his valid 2015 will, rather than to the individual who perpetrated undue influence to create the fraudulent 2020 will.

This action upheld the decedent’s true legacy and the integrity of this court’s process.”

When the Testator is at Fault

A distinct, though related, exception arises in situations where the litigation is viewed as being the “fault” of the deceased testator themselves.⁷

This rationale was more common historically but remains a valid argument in specific circumstances.

The core idea is that the testator, through their own actions or inactions, created the conditions that made a legal dispute almost inevitable.

Common scenarios where the testator may be deemed at fault include:

• Ambiguous Will Drafting: The will contains a key provision that is poorly worded, contradictory, or otherwise ambiguous, making it impossible to administer without the court’s interpretation and guidance.⁸
• Problematic Fiduciary Appointments: The testator knowingly appoints individuals with a history of conflict or animosity as co-executors, creating a situation destined for deadlock and litigation.⁷

In these circumstances, no single beneficiary or party can be blamed for the ensuing conflict.

The need for litigation was inherent in the testamentary documents or the testator’s choices.

Therefore, courts may find it fair and equitable for the estate to bear the reasonable legal costs of all parties who participated in good faith to resolve the issue that the testator created.⁷

While the modern trend, particularly in Canada, leans towards adversarial cost awards, this “testator’s fault” doctrine remains a persuasive argument, especially in cases that are purely about will construction rather than allegations of wrongdoing.

The “Probable Cause” and “Good Faith” Safe Harbors

In some jurisdictions, the law provides a remarkable safe harbor for challengers, allowing them to have their legal fees paid by the estate even if their contest is ultimately unsuccessful.

This protection is typically granted when the challenger can demonstrate that they initiated the lawsuit with “probable cause” and in “good faith”.¹

These two concepts are distinct legal standards:

• Probable Cause: This is an objective standard. It is defined as the existence of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the challenge will be successful.²² It does not require certainty of success, but it demands more than mere suspicion or speculation. It requires a solid, evidence-based foundation for the claim.
• Good Faith: This is a subjective standard. It relates to the challenger’s sincere, honest belief that they have been wronged and that their claim is legitimate.⁴ It is the opposite of bringing a claim for an improper purpose, such as harassment or delay.

In jurisdictions that recognize this exception, the court acknowledges that there can be legitimate, well-founded questions about a will’s validity that deserve to be litigated, even if the challenger cannot ultimately meet the high burden of proof required to overturn the will.

New Jersey provides a powerful example of this principle.

Under its court rules, an unsuccessful will contestant can have their reasonable attorney’s fees paid by the estate if they can establish they had “reasonable cause” for bringing the contest.²⁵

Similarly, in British Columbia, a court may order the estate to pay the costs of an unsuccessful challenger if their claim was found to have some merit, for instance, because the testator’s own conduct created the need for the inquiry.¹⁰

The existence of this “probable cause” standard for fee awards creates a potent and strategic settlement dynamic.

In a jurisdiction like New Jersey, an executor defending a will is placed in a very difficult position if the challenger can present a credible case for probable cause.

The executor faces the unsettling prospect that even if they mount a successful defense and win the trial, the estate might still be ordered to pay the challenger’s legal fees.

This dynamic, as described in one analysis, can create a “win-win” scenario for the challenger.²⁵

They either win the contest outright, or they have a strong chance of securing a favorable settlement because it is often more economically prudent for the estate to pay a settlement than to risk paying two sets of legal fees after a trial.

This reality makes the pre-litigation phase of paramount importance.

For a challenger in such a jurisdiction, the primary objective is to marshal all available evidence—medical records, financial statements, witness testimony—to build a compelling case for probable cause.

This evidence package then becomes the most powerful tool in settlement negotiations.

The implicit threat is not simply, “I might win at trial,” but rather, “Even if you win, you will likely have to pay my lawyer, so it is in the estate’s best interest to resolve this with me now.”

Part III: The Challenger’s Peril: Sanctions and Adverse Cost Awards

While the exceptions discussed in Part II offer hope to legitimate challengers, the legal system also contains powerful mechanisms to punish and deter baseless litigation.

A prospective contestant must be acutely aware of the severe financial consequences that can result from initiating a will contest without sufficient grounds.

In these scenarios, the financial risk escalates dramatically, shifting from the possibility of the estate paying some costs to the stark reality of the challenger being forced to pay for everyone’s legal fees.

Frivolous, Vexatious, or Bad Faith Litigation

Courts across North America are armed with the authority to impose sanctions on litigants and their attorneys who abuse the judicial process.

It is essential to understand that these sanctions are not imposed merely for losing a case.

They are reserved for conduct that demonstrates a flagrant disregard for the law and the court’s integrity.

Such sanctionable conduct includes:

• Lacking Legal or Factual Merit: Pursuing a claim that is completely without a basis in existing law and cannot be supported by a reasonable argument for changing the law, or a claim that is based on factual assertions for which there is no evidentiary support.¹²
• Improper Purpose: Initiating a lawsuit not to seek justice, but primarily to harass, embarrass, or maliciously injure the opposing party, or simply to cause unnecessary delay and prolong the resolution of the estate.¹²
• Asserting Falsehoods: Knowingly making material factual statements to the court that are false.¹²

Statutory frameworks explicitly grant courts this power.

For example, Michigan’s statute MCL 600.2591 allows a court to award a prevailing party all reasonable costs and attorney’s fees if it finds the opposing party’s action was “frivolous”.²⁷

California has similar provisions in its Code of Civil Procedure § 128.5 and Probate Code § 11003, which permit cost-shifting awards against a party who brings a contest “without reasonable cause and in bad faith”.¹³

New York’s Part 130 court rules allow for sanctions up to $10,000, in addition to an award of attorney’s fees, for frivolous conduct.¹²

The well-known Federal Rule of Civil Procedure 11 serves as a model for many of these state-level rules.²⁹

The penalty for such conduct represents the ultimate financial peril for a challenger.

The court can order the frivolous litigant, and in many cases their attorney as well, to pay 100% of the estate’s reasonable costs and attorney’s fees incurred in defending the baseless claim.¹²

This is, in effect, the “loser pays” principle applied not as a default rule, but as a severe punishment for abusing the legal system.

While courts are often cautious about imposing sanctions, wary of creating a “chilling effect” that might deter legitimate lawsuits, they will not hesitate to do so in egregious cases.²⁸

The standard for proving that conduct was “arbitrary, vexatious or in bad faith” is high, but the statutes exist precisely to address and curb such behavior.²⁸

This underscores a critical point for any potential challenger: a contest must be founded on a reasonable, evidence-based belief in its merits.²⁷

An action launched out of pure speculation, family animosity, or a desire to gain leverage in a settlement is the exact type of conduct these statutes are designed to punish.

The financial risk in such a case is not merely losing a potential inheritance and being responsible for one’s own legal fees; it is the catastrophic possibility of being saddled with a six-figure debt for the estate’s legal defense, a consequence that could lead to personal financial ruin.

The Practical Impact of “Loser Pays” Rules

In Canadian jurisdictions that operate under a “loser pays” system, the risk of an adverse cost award is not an exception but the expected outcome for the unsuccessful party.

This reality fundamentally shapes the entire litigation process.

The cost risk itself becomes a strategic weapon.

In Ontario, for instance, the Rules of Civil Procedure include a mechanism (Rule 49) for parties to make formal settlement offers.⁹

The consequences of rejecting such an offer are significant.

If a party rejects a formal offer and then fails to achieve a better result at trial, they can be penalized with a more severe cost award.

For example, if a defendant estate offers to settle for $100,000, the challenger rejects it, and the court ultimately dismisses the challenger’s claim entirely, the court can order the challenger to pay the estate’s legal fees on the higher “substantial indemnity” scale (50-80% of actual fees) from the date the offer was made.⁹

This rule creates immense pressure to evaluate settlement offers reasonably and seriously.

Unlike in the American system where the cost risk is relatively static (i.e., one’s own fees), in a “loser pays” jurisdiction, the potential cost liability is dynamic and shifts with every major step in the litigation.

A party must constantly reassess their position, the strength of their evidence, and the reasonableness of any settlement offers on the table.⁸

The decision to proceed to the next stage of litigation—be it discovery, motions, or trial—is always weighed against the escalating potential cost consequences of losing.

This makes for a more cautious and strategically complex legal environment, where cost management is not just a practical concern but a central element of legal strategy.

Part IV: The In Terrorem Clause: A Testator’s Shield

Many modern wills contain a specific provision designed to strike fear into the hearts of potential challengers: the no-contest clause.

Often the first and most intimidating hurdle a beneficiary considers, this clause threatens complete disinheritance for anyone who dares to dispute the will.

Understanding the true power and, more importantly, the limitations of this testamentary shield is a critical first step in assessing the viability of a will contest.

Understanding the No-Contest Clause

A no-contest clause, known in legal parlance by its Latin name, an in terrorem clause (meaning “in fear”), is a provision in a will or trust that imposes a penalty on any beneficiary who challenges the validity of the document.²²

The typical penalty is forfeiture: the challenging beneficiary loses any inheritance or interest they were granted under the will, and they are treated as if they had predeceased the testator.³⁴

The primary purpose of such a clause is to uphold the testator’s intent by deterring costly, time-consuming, and often acrimonious litigation that can deplete the estate’s assets and damage family relationships.²²

A typical clause might read:

“If any beneficiary under this Will in any manner, directly or indirectly, contests my Will or any of its provisions in any legal proceeding that is designed to thwart my wishes as expressed in my Will, any share or interest in my estate given to that contesting beneficiary under my Will is revoked and shall be disposed of as if that contesting beneficiary had failed to survive me.” ³⁴

The Landscape of Enforceability

The legal effect of a no-contest clause is not uniform across North America; rather, it exists on a wide spectrum of enforceability that is highly dependent on state or provincial law.

• Strictly Unenforceable: At one end of the spectrum, the state of Florida has, by statute, rendered no-contest clauses entirely unenforceable as a matter of public policy.²² A beneficiary in Florida can challenge a will without fear of forfeiture under such a clause.
• Strictly Enforced: At the opposite end, Nevada law mandates that no-contest clauses must be enforced by the courts to the greatest extent possible, according to their express terms. This enforcement is required “without regard to the presence or absence of probable cause for, or the good faith or bad faith of” the challenger.⁴⁰ This reflects a strong public policy in Nevada that prioritizes enforcing the testator’s stated intent above all else.
• Generally Enforceable with Exceptions: The majority of jurisdictions, including major states like New York, California, and Texas, occupy a middle ground.¹ In these states, no-contest clauses are generally considered valid and enforceable, but their power is significantly curtailed by a number of important judicial and statutory exceptions.

Even in jurisdictions where they are enforced, courts tend to view these “forfeiture provisions” with skepticism.

Because they can result in a beneficiary losing an inheritance, judges subject them to strict and narrow interpretation.

For a forfeiture to be triggered, the court must find that the testator’s intent to prohibit the specific conduct at issue was clear and unambiguous.²²

Piercing the Shield: Exceptions to Enforcement

For a challenger facing a will with a no-contest clause, the most important area of inquiry is the scope of the exceptions to its enforcement.

These exceptions are the legal pathways through the testator’s shield.

The Probable Cause Exception (Majority Rule): The most significant and widely recognized exception to the enforcement of a no-contest clause is the “probable cause” or “good faith” exception.²⁰

Under this majority rule, a court will

not enforce a forfeiture against a beneficiary if their challenge was brought with probable cause and in good faith.

As previously defined, “probable cause” is the existence of evidence that would lead a reasonable person to believe there is a substantial likelihood the contest will succeed.²²

This exception is grounded in public policy: the courts do not want to allow a no-contest clause to be used as a shield to protect a will that was procured through wrongdoing like fraud, forgery, or undue influence.²³

It ensures that beneficiaries with legitimate grounds to suspect misconduct are not deterred from bringing those facts before the court.

Stricter Standards: Some jurisdictions have adopted a more rigorous standard.

Delaware, for example, does not follow the probable cause rule.

To avoid forfeiture in Delaware, a challenger must do more than just show they had a good reason to sue; they must actually “prevail substantially” in their claim.³⁷

This more onerous standard provides a much stronger deterrent and is consistent with Delaware’s policy of robustly honoring a settlor’s intent.

Statutory “Safe Harbors”: Many state statutes also carve out specific “safe harbor” provisions, listing actions that are explicitly defined as not constituting a “contest” for the purposes of triggering a forfeiture clause.

While these vary, common safe harbors include:

• An action to question the conduct, eligibility, or appointment of a fiduciary (e.g., the executor).²²
• The filing of a legitimate creditor’s claim against the estate.³⁸
• A legal action to determine the character of property (e.g., whether an asset is community or separate property).³⁸
• A challenge based on grounds of forgery or that the will was revoked by a later document.³⁸

The existence of these exceptions reveals a critical strategic reality.

The concept of “probable cause” is a recurring theme with profound and interconnected implications.

It serves as the primary defense against the chilling effect of a no-contest clause.

Simultaneously, as discussed in Part II, it serves as a primary justification for a court to award a challenger their legal fees from the estate, even if they are ultimately unsuccessful.

This creates a powerful synergy for the challenger.

Establishing a credible case for probable cause becomes the single most important strategic objective.

It is the master key that can simultaneously unlock two doors: it (1) neutralizes the primary deterrent (the in terrorem clause) and (2) creates the potential for a no-cost or low-cost litigation by opening the door to having fees shifted to the estate.

A case that can be supported by a strong showing of probable cause has a dramatically lower and more manageable risk profile than one based on mere speculation.

The initial legal consultation with a specialized estate litigator should therefore be almost entirely dedicated to a rigorous and objective assessment of the evidence to determine if the probable cause standard can be M.T.

Table 2: Enforceability of No-Contest Clauses by Jurisdiction

Jurisdiction	Enforceability Status	Primary Exception Standard	Governing Statute / Case Law
Florida	Unenforceable by statute 22	N/A	Florida Statutes § 732.517
Nevada	Strictly Enforced 40	Enforced without regard to probable cause, except for challenges to invalidate a will.40	NRS 137.005
New York	Generally Enforceable 1	Probable cause is a key factor; certain “safe harbor” actions are permitted by statute.36	EPTL 3-3.5
California	Enforceable with Exceptions 22	Enforced unless challenger has “probable cause” for the contest.22	California Probate Code § 21311
Texas	Enforceable with Exceptions 20	Not enforced if the contest is brought in “good faith” and with “just cause”.20	Texas Estates Code § 254.005
Delaware	Enforceable with Strict Standard 37	Enforced unless the challenger “prevailed substantially” in the action.37	12 Del. C. § 3329

Part V: The Practical Economics of a Will Contest

Beyond the complex legal rules governing who should pay, a prospective litigant must confront the practical economic realities of a will contest.

This type of litigation is notoriously expensive, and understanding the specific components of the cost is essential for financial planning and strategic decision-making.

This section moves from legal theory to a granular analysis of the actual costs a challenger can expect to incur.

Deconstructing the Bill: A Breakdown of Litigation Expenses

The total cost of a will contest is an accumulation of various fees and expenses.

While every case is unique, the costs generally fall into several predictable categories.

Attorney Fee Structures: The largest single expense is typically the fees charged by the attorneys.

Law firms specializing in estate litigation commonly use one of three billing models:

• Hourly Billing: This is the most prevalent method. The law firm bills for the actual time its attorneys and paralegals spend on the case. Rates vary significantly based on the lawyer’s experience and the geographic location of the practice. For example, experienced estate litigators may charge anywhere from $200 to $500 per hour in British Columbia ¹⁰, $400 to over $700 per hour in New York ¹, and $200 to $500 per hour in Texas.⁴¹
• Flat Fee: For more predictable or less complex estate matters, some attorneys may offer a flat fee for their services.¹ This provides the client with cost certainty from the outset.
• Contingency Fee: In cases with strong merits and a large estate value, some attorneys may agree to a contingency fee arrangement.²⁰ Under this model, the attorney receives no fee unless they win the case or secure a settlement. Their fee is then a pre-agreed percentage of the client’s recovery. This can be an attractive option for a challenger with limited funds but a very strong claim.

Upfront and Ongoing Costs: Regardless of the fee structure, litigation requires initial funding.

A substantial upfront retainer is almost always required for hourly billing.

This is a deposit against which the attorney will bill their time.

Retainers can range from $5,000 to $10,000 or more in a jurisdiction like New York.¹

In Ontario, simply preparing and filing the initial court application to start the litigation can cost over $5,000.⁹

As the litigation progresses, the client will need to periodically replenish the retainer.¹⁰

Associated Costs and Disbursements: In addition to attorney’s fees, a will contest involves numerous other out-of-pocket expenses, often called “disbursements,” which the law firm pays on the client’s behalf and then bills back to the client.¹⁰

These can add tens of thousands of dollars to the total cost and include:

• Court Filing Fees: Every court charges fees to file documents. Initial filing fees can range from a few hundred to over a thousand dollars (e.g., $435 to start a case in California ⁴⁴, $300-$500 in New York ¹, and $150 to open a probate estate in Michigan ⁴⁵).
• Expert Witness Fees: This can be one of the most significant disbursements. If the contest involves claims of lack of testamentary capacity, a medical expert (like a geriatric psychiatrist) must be hired to review records and provide an opinion. If forgery is alleged, a forensic handwriting analyst is required. These experts can charge thousands or even tens of thousands of dollars for their reports and trial testimony.³⁹
• Discovery Costs: The process of gathering evidence is expensive. This includes fees for court reporters to transcribe depositions (examinations under oath), which can cost thousands of dollars per day of testimony.¹ There are also costs for serving subpoenas and obtaining copies of voluminous medical and financial records.
• Appraisal Fees: If the value of certain estate assets (like real estate, a business, or artwork) is in dispute, professional appraisers must be hired.¹⁵

Total Cost Estimates: Given these variables, the total cost of a will contest can range widely.

Based on estimates from legal professionals, a challenger can expect to spend anywhere from $10,000 to $100,000 or more in Canada.¹⁰

In the U.S., a relatively straightforward contest in New York might cost $15,000 to $30,000, while a complex or lengthy battle could easily exceed $50,000 to $100,000.¹

A contest in Florida can be expected to cost at least $10,000 and can readily surpass $50,000.³⁹

Strategic Cost Management

While the costs are daunting, there are strategic measures a litigant can take to manage and potentially minimize the financial burden.

• The Initial Case Assessment: The single most important step in cost management is the first one. Before committing to full-scale litigation, a potential challenger should invest in a fixed-fee initial consultation with a lawyer who specializes in estate litigation.¹ This provides an opportunity to have an experienced, objective expert assess the strength of the case, the likely costs, the potential for recovery, and the significant risks involved. This initial investment can save tens of thousands of dollars by preventing a party from embarking on a weak or ill-advised claim.
• Mediation and Settlement: The vast majority of will contests do not go to trial. They are resolved through a negotiated settlement.¹ Mediation, a process where a neutral third-party mediator helps the parties reach a voluntary agreement, is a common and highly effective tool. Opting for mediation or direct settlement negotiations early in the process is almost always faster and significantly cheaper than proceeding to a full trial.¹
• Strategic Discovery: The discovery process can be one of the most expensive phases of litigation. Working with an attorney to use discovery strategically—focusing on gathering the most critical documents and witness statements early on—can help build leverage for a settlement and may reduce the need for prolonged and expensive legal wrangling.¹
• Joint Representation: If multiple individuals, such as a group of siblings, share a common interest in challenging a will, they can agree to hire a single lawyer or law firm to represent them jointly.¹ By sharing the legal burden, they can significantly reduce the cost for each individual challenger.

Table 3: Sample Cost Breakdown for a Moderately Complex Will Contest

The following table provides a hypothetical, itemized budget to illustrate how costs can accumulate over the lifecycle of a moderately complex will contest.

These figures are synthesized from various jurisdictional estimates and are for illustrative purposes only.

Litigation Phase / Task	Estimated Low-End Cost ($)	Estimated High-End Cost ($)	Notes
Initial Consultation & Retainer	5,000	15,000	Includes initial case assessment and upfront payment to the law firm.1
Pleadings & Court Filing	500	2,000	Fees to file the initial contest petition and subsequent motions.1
Written Discovery	3,000	10,000	Attorney time for drafting/responding to document requests and interrogatories.
Depositions (3 witnesses)	6,000	15,000	Includes court reporter fees and attorney preparation/attendance time.1
Expert Witness (Medical/Financial)	5,000	25,000	Varies significantly by expert’s specialty and the extent of their involvement.39
Mediation / Settlement Conference	4,000	10,000	Includes the mediator’s fee and attorney preparation/attendance.9
Pre-Trial Motions	5,000	15,000	Costs for motions like summary judgment, which can be complex and time-consuming.
Trial Preparation & Trial (3 days)	20,000	75,000+	The most expensive phase, including trial briefs, witness preparation, and attorney time in court.
Total Estimated Range	$48,500	$167,000+	Highlights the immense value of reaching a settlement before trial.

Part VI: Strategic Recommendations and Conclusion

The journey through a will contest is a complex navigation of legal principles, financial risks, and profound personal stakes.

The preceding analysis demonstrates that the question of “who pays?” has no simple answer.

Instead, it is a discretionary determination made by a court, balancing default rules against principles of equity and the specific conduct of the parties.

This final section synthesizes the report’s findings into a strategic framework to aid a prospective litigant in making an informed decision.

A Framework for Decision-Making

Before embarking on a will contest, a potential challenger should engage in a rigorous self-assessment and a candid discussion with specialized legal counsel, guided by the following critical questions:

1. What is the default cost rule in my jurisdiction? Is the starting point the “American Rule,” where the initial risk is limited to my own fees, or a “Loser Pays” system, where the risk is magnified to include the estate’s defense costs? This is the foundational element of the risk assessment.
2. Do I have the financial resources to proceed? Can I afford the initial retainer fee and the ongoing costs of litigation, especially through the expensive discovery phase? A realistic budget is essential.¹
3. Does the will contain a no-contest clause? If so, what is the specific rule on its enforceability in my jurisdiction? Is it strictly enforced, unenforceable, or subject to a “probable cause” exception? This clause is the testator’s primary shield and must be evaluated immediately.²²
4. Can I meet the “probable cause” standard? This is the master key. Can I assemble credible, objective evidence that would lead a reasonable person to believe there is a substantial likelihood my challenge will succeed? This is crucial for both piercing a no-contest clause and for potentially shifting legal fees to the estate.²² A case without probable cause carries an exceptionally high risk.
5. Does my challenge confer a “benefit to the estate”? Can I frame my argument not just as a personal grievance, but as an action that upholds the testator’s true intent, protects the estate’s integrity from wrongdoing, or clarifies an ambiguity for the benefit of all? This is the primary pathway to having a successful challenger’s fees paid by the estate.¹
6. Is there a fiduciary conflict of interest? Is the executor also a major beneficiary under the contested will? If so, this creates a strategic vulnerability that can be used to challenge their use of estate funds for the defense, thereby leveling the financial playing field.⁷
7. What is the realistic net gain? What is the potential financial recovery if I win, and how does that amount compare to the estimated legal costs and the risk of an adverse cost award? A cost-benefit analysis is crucial.
8. Am I emotionally prepared for the conflict? Will contests are not just financial battles; they are often deeply personal and bitter family disputes that can last for years and exact a heavy emotional toll.

This framework underscores the absolute necessity of retaining a lawyer who specializes specifically in estate litigation.¹⁰

A general practitioner will likely lack the nuanced understanding of the specific statutes, court rules, and judicial attitudes that govern these unique cases.

An expert can provide the critical, objective assessment needed to navigate this complex legal and financial terrain.

Final Synthesis

The allocation of legal costs in a will contest is ultimately a function of judicial discretion, guided by a delicate interplay of competing principles.

It is not a simple calculation but a fact-sensitive determination that weighs the default rule of a jurisdiction against the merits of the challenge, the conduct of all parties involved, and the court’s overarching duty to achieve a just and equitable result.

For the challenger, the path is laden with financial risk.

The default position in the U.S. requires self-funding, while the Canadian system threatens the challenger with paying both sides’ costs.

However, the law provides clear pathways to shift this burden.

By demonstrating that a challenge was brought with probable cause, that it benefited the estate by uncovering truth or correcting injustice, or that the testator’s own actions necessitated the litigation, a challenger can transform a perilous, privately funded lawsuit into one where the estate rightfully bears the cost of its resolution.

Conversely, a challenge brought in bad faith or without merit can result in financially devastating sanctions.

Ultimately, the decision to contest a will is as much a strategic risk assessment as it is a legal one.

It demands a clear-eyed evaluation of the evidence, a realistic understanding of the costs, and a deep appreciation for the legal principles that will govern the final accounting.

Appendix: Jurisdictional Deep Dive

Table 4: Detailed Jurisdictional Summary of Will Contest Cost Rules

Jurisdiction	Default Cost Rule	Executor Fee Rule	Challenger Fee Rule (If Successful)	Challenger Fee Rule (If Unsuccessful)	Frivolous Claim Sanctions	No-Contest Clause Rule	Typical Cost Range (Contest)	Key Statutes/Rules
New York	American Rule 1	Paid by estate unless bad faith or negligence.1	Can petition for fees from estate if action benefited the estate.1	Pays own fees. May have fees paid by estate if contest was based on probable cause and good faith.1	Yes, court can award costs and impose sanctions up to $10,000 for frivolous conduct.12	Generally enforceable, but with a probable cause exception and statutory safe harbors.1	$15,000 – $100,000+ 1	SCPA, EPTL, CPLR, Part 130 Rules
California	American Rule 3	Paid by estate; fees are statutory based on estate value.44	Can petition for fees from estate if action benefited the estate.	Pays own fees. Can be ordered to pay estate’s fees if contest was “without reasonable cause and in bad faith”.13	Yes, court can award fees and expenses for bad-faith or frivolous tactics.13	Enforceable, but not if the challenger has probable cause.22	Varies; filing fee is $435.44 Attorney fees are statutory.	Probate Code § 11003, § 21311; CCP § 128.5
Florida	American Rule 3	Paid by estate; fees are “reasonable” and can be based on a statutory schedule.43	Can have fees paid from the estate if the action benefited the estate.19	Pays own fees.	Yes, courts have inherent authority to sanction bad faith conduct.	Unenforceable by statute.22	$10,000 – $50,000+ 39	Florida Statutes § 732.517, § 733.106
Texas	American Rule 48	Entitled to reasonable fees from the estate if acting in good faith.14	Court has discretion to award reasonable attorney’s fees from the estate.14	Pays own fees. Court has discretion to award fees from the estate if the contest was brought in good faith and with just cause.14	Yes, courts can sanction groundless pleadings brought in bad faith or for harassment.	Enforceable, but not if contest is brought in good faith and with just cause.20	$5,000 – $50,000+ 41	Estates Code § 254.005, § 352.052
Michigan	American Rule	Paid by estate if services were necessary and fees are reasonable.49	Can petition for fees if action benefited the estate.	Pays own fees.	Yes, mandatory award of costs and fees for frivolous actions or defenses.27	Enforceable, subject to probable cause exception.	Varies widely; depends on complexity. Attorney rates ~$350/hr.45	MCL 600.2591, MCR 5.313
New Jersey	American Rule	Paid by estate.	Can have fees paid by the estate.	Can have fees paid by the estate if there was “reasonable cause” for the contest.25	Yes, for frivolous litigation.	Enforceable, but subject to probable cause exception.	Varies.	NJ Court Rule 4:42-9(a)(3)
Wisconsin	American Rule	Paid by estate if acting in good faith.50	Prevailing party may be awarded reasonable fees from the estate.50	Unsuccessful contestant may have fees paid by estate if they propounded another will in good faith.50	Yes, for bad faith or frivolous actions.	Enforceable, subject to probable cause exception.	Varies.	Wis. Stat. § 879.35, § 879.37
Utah	American Rule	Entitled to necessary expenses from estate if acting in good faith, whether successful or not.51	Court may award costs and fees to any party from the estate “as justice and equity may require”.51	Pays own fees, unless court orders otherwise based on justice and equity.51	Yes, under general rules of civil procedure.	Enforceable, subject to probable cause exception.	Varies.	Utah Code § 75-3-719
Nevada	American Rule	Paid by estate; fees can be statutory based on estate value or hourly.52	Can petition for fees.	Pays own fees.	Yes, under general rules of civil procedure.	Strictly enforced without regard to probable cause, with specific statutory exceptions.40	Varies.	NRS 137.005, NRS 150.060
Ontario	Loser Pays 9	Paid by estate if acting reasonably and for the estate’s benefit, not personal interest.9	Successful party is awarded a portion of their costs from the loser.9	Pays own fees PLUS a portion (partial or substantial indemnity) of the estate’s fees.9	Yes, “substantial indemnity” costs can be awarded to sanction inappropriate behavior.9	Enforceable, subject to public policy exceptions (e.g., challenges to executor conduct).	$25,000+ for a case that settles relatively early.9	Rules of Civil Procedure, Rule 49
British Columbia	Loser Pays 10	Paid by estate if acting reasonably.	Successful party is awarded costs from the loser.10	Pays own fees PLUS some or all of the estate’s costs. May have costs paid by estate if unsuccessful claim had merit.10	Yes, “special costs” (near full indemnity) can be awarded for reprehensible conduct.8	Enforceable, subject to public policy exceptions.	$10,000 – $100,000+ 10	Supreme Court Civil Rules, Rule 14-1

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