Oliver Wooding, instructed by Emma Ironside and Ellie Bond of Clarke Willmott, has successfully acted for the claimant in Burgess v Whittle and another [2025] EWHC 2633 (Ch); [2025] EWHC 2829 (Ch).
Oliver’s client obtained probate of her mother’s last will in the face of challenges based on testamentary capacity, knowledge and approval, undue influence, and because the original will was not available. At a subsequent costs hearing he obtained indemnity costs against the first defendant, and an indemnity out of the estate.
The deceased died in 2017, aged 82. She had survived her husband, and left three adult children – two daughters (the claimant and the first defendant) and a son (the second defendant). In 1984 she had made a will leaving her estate between her three children equally. In 2009, the deceased and the first defendant fell out and became estranged. The deceased told her other children that she was going to remove the first defendant from her will. Eventually in 2014 the deceased contacted a will writing service, and made a new will. She changed the first defendant’s one third share so that it passed to the first defendant’s children instead. The deceased’s health declined from 2015 onwards and for the last 18 months of her life she was in a dementia nursing home.
Following the deceased’s death the first defendant immediately placed a caveat on the estate. Eventually, after many years, she alleged that the 2014 will was invalid because of lack of testamentary capacity, want of knowledge and approval, undue influence, and because there was only a copy of the will, not the original copy which had been lost at the probate registry.
The claimant issued proceedings in 2023 and the trial took place in 2025 before HHJ Paul Matthews. Following issue, the first defendant sought an expert report on the deceased’s capacity which ultimately concluded that she had capacity. The day before trial the first defendant conceded testamentary capacity, did not pursue her undue influence claim, and was otherwise neutral.
The judge concluded that the 2014 will was valid. Not only was there a joint expert report establishing capacity, but there was nothing else in the medical records which pointed to a lack of capacity when the will was made. Since the deceased had capacity and the will contained an attestation clause, knowledge and approval was presumed.
The judge was particularly clear that the first defendant had run an undue influence claim. The alleged influence was by the wills consultant who had taken instructions for the will. The judge concluded that such an allegation should never have been made and dismissed it. Finally, the judge admitted the copy of the signed will to probate pending obtaining the original which had “disappointingly” been lost by the probate registry.
The judge subsequently dealt with costs, with three points of special interest to probate practitioners.
First, the judge rejected the first defendant’s attempt to rely on the second limb in Spiers v English, being that her knowledge and means of knowledge reasonably justified an investigation of the matter such that there should be no order as to costs. The judge concluded that estrangement was not of itself a ground for suspicion – “people fall out”. Further the first defendant took no steps to obtain the deceased’s medical records before entering her caveat or issuing her counterclaim, when she could have done so, and had she done so she would have seen there were no grounds for investigation.
Second, the judge ordered that the first defendant to pay the claimant’s costs on the indemnity basis. Matters which took the case out of the norm were that:
- the first defendant’s case was “speculative, weak, opportunistic or thin” since there was no evidence that pointed in her favour and all the evidence pointed against her, from before proceedings were issued;
- the first defendant’s concessions in her late skeleton filed the day before trial should have been made “…months, if not years before.” In particular, it had caused the claimant to have to fly from Australia to give unchallenged evidence for no more than 5 minutes;
- the first defendant had unreasonably refused “offer after offer” made by the claimant as the proceedings progressed.
Third, the judge ultimately granted probate of the 2014 will to the claimant as a residuary legatee, because the firm which had been named as executors had been dissolved. Accordingly, the judge further awarded the claimant an indemnity for her costs from the estate since she had taken the steps to propound the will which an executor should have, under the principle most recently stated in Worby v Rosser.
Oliver is a member of our Wills & Trusts team, and advises, appears, and mediates (both as counsel and as a mediator) in every kind of will challenge claim. Details of his practice are available here.
A copy of the substantive judgment is at [2025] EWHC 2633 (Ch) and available here; and of the costs judgment at [2025] EWHC 2829 (Ch) and available here.