If you’re considering a claim against a deceased estate, it is important to take early expert advice to avoid the danger of pursuing a hopeless claim. The risks are clearly illustrated in a recent case where the claimant found herself liable for substantial legal costs.
More people than ever are prepared to make a claim against an estate. Statistics reveal a 37% rise in probate disputes reaching court between 2014 and 2023 (Ministry of Justice). Many claims undoubtedly have a good chance of success, but contesting an estate can be distressing and expensive.
Anyone deliberating whether to take legal action must give serious consideration before taking further steps. Please get in touch with the specialist contentious probate team at mfg Solicitors and we can advise you on your position.
Ellis v Ellis [2025] EWHC 2609
Keith Care was a breeder of rare pedigree pigs and died in 2020 leaving a Will made in 2016. His friend and fellow rare pig enthusiast, Luke Ellis, was the principal beneficiary of his estate.
The primary asset was the 61-acre family farm in Cornwall which Keith co-owned with his brother Vivian. Keith’s share on death was valued at £655,000 (subject to a mortgage of roughly £137,000).
Vivian contested the Will on almost every ground available, including lack of capacity and due execution, arguing that Keith died intestate. If the claim succeeded, Keith’s estate would pass to Vivian as his next of kin under the intestacy rules.
However, Luke gave evidence that Vivian was no real part of Keith’s life and that Keith had told him he wanted to leave the farm to Luke.
The judge concluded on the evidence that Keith’s decision not to make Vivian the main beneficiary was “perfectly logical” and choosing Luke was logical; and that Keith had the required capacity to make the Will. The Will was also duly executed; and there was no evidence to find it unconscionable not to uphold the Will.
Costs
The substantive decision was in December 2024 and a separate decision on the issue of costs has recently been handed down.
The general rule is that the losing party pays the winner’s costs (Civil Procedure Rules 44.2(2)(a)). In contested wills cases, the judge can depart from the general rule if the conduct of the deceased or a beneficiary caused the litigation (or other circumstances exist that require investigation).
In his costs ruling, the judge did not hold back in criticising Vivian in bringing the claim in the first place. He had also attempted to rely on “almost every point imaginable in relation to costs, even when some of them were unmeritorious”. Vivian had claimed, for example, that Keith had caused confusion and uncertainty and, therefore, the litigation. The judge rejected his arguments, adding that Keith had not been obliged to tell his family he had made a Will.
As for Vivian’s conduct in the course of proceedings, he had delayed his care preparation for two years and the litigation itself had been very hostile. Luke’s patience eventually ran out and eventually issued proceedings himself.
Vivian also relied on Luke’s refusal to mediate in an attempt to minimise the costs he would be ordered to pay. However, Luke’s reluctance to mediate was justified because Vivian had withheld key evidence. Vivian then subsequently refused to engage with a genuine offer made by Luke to settle the claim.
The judge ordered Vivian to pay Luke’s litigation costs of £94,000. He also noted that the executors had, to some extent, been forced to engage with the litigation as Vivian had challenged the Will on almost every conceivable ground.
Vivian was therefore also liable for 85% of the executors’ legal costs (amounting to more than £17,000).
How we can help
If you’re involved in a dispute concerning a deceased estate, you need specialist advice before taking any further steps. Please contact the experienced contentious probate team at mfg Solicitors on 01562 820181 or email Victoria Griffiths at victoria.griffiths@mfgsolicitors.com.
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