Our contentious probate team is regularly asked by beneficiaries whether they are entitled to challenge solicitors’ legal costs in probate cases.
Legal costs in probate cases are governed by the non-contentious costs rules. Non-contentious costs are defined as “monies payable for legal services in connection with non-contentious business”. Probate is an example of “non-contentious business”, where the solicitor is instructed by the executor to administer the estate.
Costs must be fair and reasonable and as with all areas of non-contentious business, the client (ie the executor) has a right to challenge those costs.
The client can apply to the court for an assessment of the final bill, but important time limits apply. Under s70 of The Solicitors Act the client must apply for assessment within one month of the final bill of costs being delivered.
If an application is made late, but before 12 months have elapsed then the client can still ask the court for permission to assess – though there is no guarantee that permission will be given.
After 12 months from the date of delivery of the bill (or after any judgment, or after a bill has been paid) it is unlikely that a court would agree to assess the costs.
Under the CPR (court rules), the solicitor must serve a breakdown of costs within 28 days of the order. Within 14 days the client must then serve “points in dispute”. If the case doesn’t settle a detailed assessment hearing will take place. If, at the hearing, the solicitor’s costs are reduced by one fifth or more then the solicitor will probably be ordered to pay the costs of assessment. If it’s less than one fifth, then the challenger is likely to be ordered to pay those costs.
So far, so good: but what about people who are beneficiaries and not executors? If the beneficiary isn’t a client and has not been involved in the instruction of the solicitor, how can they go about challenging legal costs which indirectly they are responsible for paying?
Under s71(1) of The Solicitors Act 1974, where the solicitor’s costs are payable by a party who isn’t a client, they too are entitled to apply to the court for an order for assessment.
This means that residuary beneficiaries, whose legacy is subject to deduction of liabilities such as legal costs, can seek an assessment if they think the solicitor’s costs are not reasonable.
All beneficiaries (non-residuary beneficiaries as well as residuary beneficiaries) are also entitled to make a complaint against a solicitor even though they are not direct clients of the firm. This entitlement is specifically included in the Legal Ombudsman’s Scheme Rules.
If you are a beneficiary needing advice on challenging a solicitor’s probate costs then contact us on 0333 888 0404. You can also email Lee Dawkins direct at [email protected].
