Probate Costs in Litigation: A Clarifying Decision from Master Rowley
A recent decision by Master Rowley, now gaining traction on social media, has shed light on a technical but important issue in costs recovery relating to recovery of Probate costs.
Key Takeaways from the Decision:
- Probate for Litigation Purposes is Recoverable
Where Probate is obtained specifically to enable litigation—rather than for the general administration of the estate—it may, in principle, be treated as a recoverable litigation cost. This represents a potentially important distinction for practitioners drafting costs budgets and bills.
- The Evidential Threshold is Modest, But Necessary
The bar for establishing that Probate was obtained for litigation purposes is not high. However, it does require some form of supporting evidence to convince the court. A simple assertion is unlikely to suffice; evidence demonstrating the motivation and necessity behind obtaining Probate will be key.
- Subject to Reasonableness and Proportionality
Even where Probate is deemed a recoverable cost, it will still be assessed in line with the usual principles of reasonableness and proportionality. Costs that are excessive or not properly incurred are unlikely to be allowed in full.
- Administration-Driven Probate Limits Recovery
Conversely, where the primary purpose of obtaining Probate was the routine administration of the estate—rather than to support litigation—then only the cost of obtaining copies of the Grant will be recoverable. These are treated as disbursements necessary for the conduct of litigation, but not the process itself.
A Persuasive First Instance Decision
Although the ruling is at first instance, it carries significant weight. Master Rowley, as the Senior Costs Judge, is a leading authority on such matters, and his reasoning is likely to be persuasive to other costs judges dealing with similar arguments at detailed assessment.
Conclusion
This decision provides welcome clarity on a previously uncertain issue, and practitioners involved in contentious probate claims or estate-related litigation should take careful note. The distinction between Probate obtained for litigation versus administrative purposes could have a material impact on cost recovery and should be evidenced accordingly from the outset.
27.06.2025