The Costs of Probate Claims, Proportionality, and the Case for Mediation
Probate litigation can be complex, costly, and, at times, disproportionate to the value of the estate in dispute. The recent case of Ashimola & Anor v Samuel & Anor [2025] EWHC 502 (Ch) highlights the challenges courts face when probate disputes become overly contentious. The case involved a claimant challenging a grant of probate on the extraordinary basis that she was “very much alive.” Beyond the unusual facts, the case serves as a cautionary tale about procedural inefficiencies, excessive litigation costs, and the advantages of alternative dispute resolution, particularly mediation.
The Cost of Probate Litigation: A Warning from the Courts
Deputy Master Linwood, in his judgment, expressed serious concerns about proportionality. The case involved a property with an estimated equity of around £172,000. However, the parties’ combined legal costs had already reached approximately £151,000, nearly eroding the value of the asset in dispute. The judge remarked that these costs “may by now exceed” the remaining equity, making the litigation itself an exercise in financial futility.
This case underscores a critical issue in probate disputes: the risk that legal fees will consume the very inheritance the parties are fighting over. While some cases require judicial determination, many probate disputes involve family members or beneficiaries who could benefit from earlier intervention to prevent costs from spiraling out of control.
Proportionality and the Overriding Objective
The Civil Procedure Rules (CPR) emphasize proportionality as a key principle in case management. The overriding objective requires that cases be dealt with justly and at proportionate cost. In Ashimola, the judge found multiple procedural failures, including chaotic trial bundles, disagreements over basic case documents, and issues with cross-examination due to pagination inconsistencies. These inefficiencies contributed to unnecessary delays and costs.
When probate litigation is not handled efficiently, it not only burdens the parties but also places unnecessary strain on court resources. The Ashimola case demonstrates that courts are increasingly willing to scrutinize costs and procedural fairness, potentially imposing sanctions where parties fail to adhere to proper case management practices.
Mediation as a Cost-Effective Alternative
The rising costs and procedural pitfalls of probate litigation highlight the need for alternative dispute resolution (ADR), particularly mediation. Mediation offers several advantages in probate disputes:
1. Cost Savings – Mediation is significantly less expensive than a fully litigated trial. Legal fees in contested probate cases can escalate quickly, particularly when expert evidence and court hearings are required. A successful mediation can resolve the dispute at a fraction of the cost.
2. Speed and Efficiency – Court proceedings can take years to conclude, whereas mediation can resolve disputes within weeks or months. Given that estate assets may depreciate or incur additional liabilities (such as mortgage arrears), resolving matters quickly is often in everyone’s best interest.
3. Confidentiality – Unlike court proceedings, which are public, mediation remains confidential. This can be particularly beneficial in family disputes, where preserving relationships is important.
4. Control Over the Outcome – Mediation allows parties to craft their own settlement terms rather than having an outcome imposed by the court. This flexibility can lead to creative solutions that better serve all involved.
5. Reduced Emotional Toll – Probate disputes often involve grieving family members who may have long-standing conflicts. Litigation can exacerbate tensions, whereas mediation encourages constructive dialogue and compromise.
The Courts’ Increasing Expectation to Mediate
There is growing judicial support for mediation in civil disputes, including probate claims. In Cost Bites 221, another recent case, the court did not penalize a successful defendant for refusing mediation, but there is increasing recognition that parties should, at a minimum, consider ADR before resorting to litigation. A failure to engage in mediation without good reason may, in some cases, lead to cost consequences.
Conclusion
The Ashimola case serves as a stark reminder of the dangers of disproportionate litigation costs in probate claims. The case management issues highlighted by the court illustrate how procedural inefficiencies can further complicate an already costly process. While litigation is sometimes necessary, parties should consider mediation as a viable alternative. By resolving disputes earlier, beneficiaries can preserve more of the estate’s value and avoid the emotional and financial toll of prolonged court battles.