Ivey v Lythgoe [2025] EWHC 2325 (Ch)

This blog was co-authored by Claire Brierley and Annabel Lake.

This case underscores how easily probate disputes can escalate when will drafting goes wrong, and how firmly the courts are now willing to intervene. With a keen focus on consolidation and compulsory mediation, to keep costs proportionate and ensure any related issues are also resolved.

Case Details

The Deceased was the late David Ivey (the “Deceased”), who passed away in 2023. The dispute involved two Wills - the first was prepared in 1994 by a will writing company called PEP Consultancy Limited (the “1994 Will”) and the second was prepared in 2009 by Trust Inheritance Limited (the “2009 Will”).

The Deceased had two brothers, Russell and Gerald. Gerald died in 2020, leaving no children, and Russell died in 2005, leaving four children who were the Claimants in this matter (the “Claimants”). The First Defendant (the “First Defendant”) is the Deceased’s surviving first cousin, and the Second Defendant (the “Second Defendant”) was in a relationship with the Deceased at the time the 1994 Will was prepared.

The 1994 Will left the estate in equal shares between Russell, Gerald, and the Second Defendant. The 1994 Will contained a clause providing that should any of the three beneficiaries predecease him, any spouse or child of theirs should inherit their share by way of substitution. The Claimants say that the Deceased’s instructions were that the intended gift for the Second Defendant was not an equal share with Russell and Gerald, but that his instructions were for Russell and Gerald to inherit 85% of the estate and for the Second Defendant to inherit 15% of the estate. The Claimants were unaware as to whether this Will was ever executed, as only an unsigned copy was found.

For the 2009 Will, the Claimants asserted that the Deceased’s instructions to Trust Inheritance Limited were given by the Deceased in a letter of 28 April 2009. The handwritten letter read (containing a spelling mistake):

"I would like to change my will regarding Janice Mary Piper and familey”

“Please remove them from my will. Then, will you put Susan Marie Lythgoe and Nolan Daphnie Gay in their Place? Addresses enclosed”.

The 2009 Will went on to remove not only the Second Defendant, but also Gerald and Russell. The Claimants say that the will writers misunderstood the Deceased’s instructions by removing the Deceased’s family. The Claimants submitted that it was the Deceased’s intention to remove the Second Defendant's family’s right to inherit his estate by way of substitution as set out in the 1994 Will, not to disinherit his own family. An error, the Claimants claimed that the Deceased did not notice when he signed the 2009 Will.

What were the Claimants asking from the Courts?

The Claimant's position was that the 2009 Will should not be admitted to probate because:

• The Deceased lacked knowledge and approval of its contents; and/or
• It was not validly executed under the Wills Act 1837.

There is a presumption of due execution under the Wills Act 1837, when a Testator (the person making the Will) validly executes a Will. However, this presumption can be rebutted, and the burden of proving this is on the person contesting the will's validity.

The Claimants also contended that the 1994 Will had never been executed, meaning it could not be admitted to probate either.

The Claimants’ position was that they should inherit the estate on the assumption that there was no valid Will in play, in accordance with the Rules of Intestacy.

On the basis that the court rejects the above claims, the Claimants provided an alternative remedy that if either the 1994 or 2009 Will were ultimately admitted to probate, the Claimants sought rectification so the document would reflect what they said were the Deceased's true intentions.

There was a further application made alongside the aforementioned probate claim, which was a separate negligence claim against the will writers, Trust Inheritance Limited, for misinterpreting the Deceased’s instructions.

The Claimants asked the court to either add Trust Inheritance Limited into the proceedings as a ‘costs only party’, under Section 51 of the Senior Courts Act 1981, or to consolidate the claims.

Finally, given that Trust Inheritance Limited had refused to attend mediation, the Claimants requested an order that they be required to do so.

The Court's Decision

HHJ Paul Matthews refused to allow the will writers to be joined as costs‑only parties, explaining that this procedure is appropriate only where negligence is admitted or so clear that no factual dispute remains.

Given that the will writers denied liability, HHJ Matthews ordered the probate and negligence claims to be consolidated so all issues could be resolved together.

On the point of mediation, the court applied the principles from Churchill v Merthyr Tydfil BC [2023] EWCA Civ 1416, noting that once Trust Inheritance Limited became a full party to the proceedings, the court had the power to order its participation in alternative dispute resolution. He stressed that this “tripartite litigation cries out for mediation,” given the sharply disputed facts, the relatively modest value of the estate, and the risk that trial costs would become wholly disproportionate.

Ultimately, Trust Inheritance Limited was ordered to take part in the mediation scheduled for October. The outcome of the mediation is yet unknown.

Final Comments

All those in the world of probate litigation will need to carefully consider and advise clients before refusing to engage in ADR without good reason.  This case suggests the court’s power to order compulsory mediation may soon be a routine feature of probate litigation.

The decision also serves as a reminder to all will writers and solicitors that will drafting errors can put them on the wrong side of a negligence claim and potentially in the heart of contentious probate proceedings.