The Year Ahead

Looking to the year ahead, one thing is certain: there will be a continued increase in private wealth disputes, which have in recent years occupied the attention of the courts and media headlines.

While reported cases are likely to be the tip of the iceberg (with many going unreported or settling before trial), those that have been before the courts have led to significant legal developments, which also serve to increase intrigue in this burgeoning area of law.

There are some identifiable trends arising from recent decisions, which are looked at further in this article.

Are Non-Party Cost Orders in Vogue?

Solicitors engaged in the preparation of wills owe responsibilities that extend beyond the client to the intended beneficiaries (as established in the case of White v Jones).

A failure to exercise reasonable professional skill and care can result not only in the loss of inheritance, but also in unexpected tax bills and the incurrence of costs of putting things right (whether through settlement or court).

Examples of negligent conduct may include:

• a delay in preparing a will prior to death;
• a failure to carry out the client’s instructions and intentions; and
• a failure to observe other procedural safeguards (eg, undertaking a capacity assessment pursuant to the “golden rule”).

While negligence claims remain a key route for redress, recent decisions by the courts evidence a willingness to utilise non-party costs orders as an alternative remedy for holding will-drafters accountable where their errors have been the cause or contributed to the litigation.

Section 51(3) of the Senior Courts Act 1981 provides the court with jurisdiction to make an order for payment of costs against a non-party to court proceedings.

Civil Procedure Rule (CPR) 46.2 further provides that, where the court is considering whether to make an adverse costs order against a non-party, that non-party must be added as a party to the proceedings (for the purposes of costs only) and must be given a reasonable opportunity to attend the costs hearing.

In probate disputes, the general rule is that costs follow the event: the losing party pays the successful party’s costs (subject to the widely acknowledged exceptions applicable to probate disputes, as established in Spiers v English and Kostic v Chaplin, and the general wide discretion retained by the court on the allocation of costs under CPR 44.2).

Where errors by the will drafter are found to be the cause of the litigation, or a contributing factor, the court can exercise its jurisdiction to join the will drafting firm (or indeed their insurers) to proceedings for the purposes of costs.

The case of Marley v Rawlings (No 2) [2014] UKSC 51 will be well-known to readers. It was a case in which a married couple inadvertently signed each other’s wills as opposed to their own. On the matter of costs, the Supreme Court held that, due to the solicitor’s failure to supervise the correct execution of the wills, they were the cause of the litigation, and their insurers were ordered to pay the costs.

Moving forward nearly ten years from this Supreme Court judgment in Marley, there are the cases of Pead v Prostate Cancer UK [2023] EWHC 3224 (Ch) and Leonard v Leonard [2024] (Costs) EWHC 979, in which non-party costs orders were again made.

Pead involved a firm of solicitors being ordered to pay the costs of a probate dispute because its predecessor firm had failed to draft a will properly. Notably, the firm admitted only partial liability. The court ordered the firm to pay 60% of parties’ overall costs liability to reflect the degree to which the judge found they were responsible.

In Leonard, Justice Joanna Smith identified at trial a “litany of failings” by the firm that drafted the disputed will and made an order to join that firm for the purposes of a non-party costs order. Unfortunately, there does not appear to be any further order made, suggesting that it was settled between that firm and the parties.

It is not uncommon for judges to wade in with their views and criticism of the conduct of will writers (eg, in Key v Key [2010] EWHC 408 (Ch); James v James & Others [2018] EWHC 242) where the solicitors were criticised for failing to consider capacity. This is not to say that, in all instances, a non-party costs order will be made. Such orders are still considered an exception, falling with the court’s wider costs jurisdiction.

A court is unlikely to make a non-party cost order of its own volition unless invited to do so by the parties. What is less clear from case law, is whether they will do so in the absence of an admission of negligence by the firm involved.

In Marley, the insurers admitted liability prior to the costs order being made against them, whereas in Pead (which, on its facts, the judge accepted was “not such a clear-cut case” as Marley), the judge made a non-party costs order where negligence was not fully admitted. The court considered this appropriate where – although not the sole cause of litigation – the firm had contributed to it through its actions in relation to the will and also its conduct in the pre-action stage.

The judge went further in stating that a separate professional negligence application “would not be a fair and just outcome” in the circumstances of the case. However, it is worth noting that the firm was put on notice prior to the probate claim of an alleged professional negligence claim, and it notified its insurers accordingly.

As a practice guidance point, disappointed beneficiaries should consider putting will‑drafters (and their insurers) on notice and, where appropriate, issue a separate professional negligence claim (which can be stayed and consolidated), which could prove useful particularly in circumstances where a negligence claim is close to limitation (see Sifri v Willis [2007] WTLR 1453).

The threat of a negligence claim, and/or of an application for a non-party costs order, could also have the effect of bringing the firm (or insurers) to the negotiation table much earlier.

In the recent case of Ivey v Lythgoe [2025] EWHC 2325 (Ch), HHJ Matthews refused a summary application to join a will drafting firm to proceedings before trial and a determination or admission of liability in negligence. He stated it would be “putting the cart before the horse”.

Although authorities confirm that non-party costs orders are to be dealt with after adjudication of the main dispute, this decision contradicts, somewhat, the finding in Pead that a negligence claim did not have to be determined first. HHJ Matthews instead ordered the consolidation of a negligence claim and probate proceedings.

The ruling indicates that courts may be reluctant to make non-party costs orders where negligence remains disputed. While this approach logically avoids sidestepping established negligence principles, the court’s discretion to award non-party costs remains wide and involves a different test. It should also not be forgotten that subject to CPR 46.2(b), a proposed non-party is provided with the opportunity to make submissions in defence.

Requiring a negligence claim to be underway also creates difficulties for disappointed beneficiaries, not just due to the cost implications of running two claims, but in the event that a negligence claim may not be an option – due, say, to being time barred.

It is hard to say without further authorities on the point whether a court would be inclined to consider a non-party costs order where the remedy for negligence is not available due to limitation (perhaps not) but, in those circumstances, the ability to seek a non-party costs order could be an alternative route to recovery for beneficiaries.

What makes Ivey v Lythgoe perhaps even more interesting is the decision by HHJ Matthews to order compulsory attendance at mediation by the will drafting firm. Perhaps, after all, he did have in mind the cost implications of two sets of proceedings and the fact that non-party costs orders can only be dealt with after trial, when significant costs would already have been incurred. This decision to order compulsory mediation in a probate dispute marks a change that could shape the sector and is considered further below.

As a parting thought, it will be interesting to monitor the development and trends in non-party costs orders against professional advisers acting outside the will-making process – eg, claims by disappointed beneficiaries in relation to the other types of trust instruments, negligent tax advice and lifetime gifts.

The extension of the White v Jones principle in relation to these activities is itself a developing area of law (see Daniels v Thompson [2004] All ER(D) 357; Rind v Theodore Goddard (a firm) [2008] All ER (D) 134; Vinton v Fladgate Fielder [2010] STC 1868 ; Carr-Glynn v Frearsons [1999]; and Steven v Hewats [2013] CSOH 61, to name a few). The interplay between these areas will no doubt be interesting to watch.

ADR: Is Compulsory Mediation on the Horizon?

Despite statistics evidencing a surge in disputes, mediation continues to be a popular and effective way to achieve greater certainty and potentially even greater saving of time, cost and emotional strain. The efficacy of mediation has not, of course, escaped the attention of the courts, and following the decision in Churchill and the 2024 CPR amendments, ADR has assumed a more prominent role.

For the first time, the procedural rules formally authorise courts to require parties to participate in mediation or other ADR mechanisms. This marks a clear departure from the previous legal understanding – shaped by the court of appeal’s judgment in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 57– that compelling parties to mediate would impermissibly interfere with the right of access to the court.

This development, now formalised in CPR r 3.1(2)(o), has clear implications for private wealth litigation, where the courts are increasingly adopting a robust stance in encouraging, and at times ordering, the parties to engage in mediation.

The High Court’s decision in Ivey v Lythgoe marks a notable advancement in the court’s approach to compulsory mediation within contentious probate proceedings. Having ordered the consolidation of the probate and negligence claims in the matter, HHJ Paul Matthews ordered that a third-party will‑writing company should participate in mediation alongside the parties – confirming that the court’s enhanced powers under CPR 3.1(2)(o) are extensive.

The Court stressed that several factors made compulsory ADR both proportionate and necessary in this case: the narrow scope of factual issues, the availability of key documents and the risk that legal costs would quickly outweigh the modest value of the estate. In such circumstances, mediation offered the most efficient route to a fair and pragmatic resolution.

The case confirms that where mediation presents a realistic opportunity to narrow issues or avoid disproportionate expenditure, parties and non-parties can be required to engage. The case may mark a shift towards more third-parties being joined to mediation when appropriate, and practitioners should consider the benefits of inviting drafts people to engage in ADR, particularly when a negligence claim is being intimated.

Although the benefits of ADR are apparent, the changes in the rules and new-found emphasis on ordering mediation should not detract from the fact that not all cases will be suitable for ADR. Furthermore, it should not be pre-supposed that a refusal to mediate will always result in cost penalties later on.

There are two recent decisions of note in this regard:

• Grijns v Grijns & Ors [2025] EWHC 2853 (Ch) (a family dispute over the ownership of a property in Chelsea), where the court ruled that the defendants’ resistance to ADR (which was not an outward refusal on the facts) was reasonable given the lack of merit in the claimant’s claim – and therefore declined to impose any costs penalty; and
• Gable v Dewsall & Ors [2025] EWHC 3399 (Ch), where the court recognised that it was able to make orders penalising a party to failing to engage in ADR – but in this instance the refusal was reasonable where the invitation to mediate, the scope of mediation and the case against the defendant were not clear.

In contrast, practitioners should bear in mind the principle established in PGF II SA v OMFS Co Ltd [2014] 1 WLR 1386 that a party’s complete silence to respond to an invitation to mediation/ADR will usually be treated as unreasonable.

Whilst conduct can be considered more generally within the court’s wide discretion under CPR 44.4, it is also relevant in the context of probate claims and trust disputes – where the conduct of personal representatives and/or trustees may result in them being able to rely upon, or denied, their indemnity for costs from the estate/trust funds.

Out of Sight, Out of Time

In recent years, the courts have readily deployed the equitable doctrine of “laches” as a means of dismissing probate claims where:

• claimants had unreasonably delayed in bringing their claims;
• it was considered detrimental to others who had reasonably relied on the claimant’s inaction (eg, distributing the estate); and
• allowing the claims to proceed would serve no useful purpose (McElroy v McElroy [2023] EWHC 109 (Ch); James v Scudamore [2023] EWHC 996; Alizade v Kudlick [2023] EWHC 1082 (Ch)).

In James v Scudamore, HHJ Matthews coined a standalone “probate laches”, which appears to be very much alive and kicking in 2025/2026. The application of this doctrine appears in the 2025 case of Bowerman v Bowerman [2025] EWHC 2947 (Ch) where, despite the strength of the claimant’s claim to overturn a will made in 1999, he was barred from bringing it on the basis that:

• he had unreasonably left it 18 ½ years before bringing the claim; and
• he in fact confirmed to the defendants in 2024 that he did not intend to proceed with a claim, leading the executors to administer and distribute the estate at that time.

This judgment was soon followed by the decision in Stephenson v Daley, in which the judge held a defence for laches applied given a lengthy period of unjustified delay, in which time a key witness had died, recollections had dimmed and documents had been lost (similar to the facts in James v Scudamore).

Notably, previous decisions applying the doctrine were in cases where probate had been granted. In Stephenson, the grant had not yet issued, suggesting that time starts running from the date of death rather than the issuing of a grant.

It is unusual for a claim to overturn a will to be brought so long after the administration of an estate. However, the moral of the story is that those seeking to bring a claim must do so promptly (preferably with the benefit of good legal advice as to merits and after the parties have considered whether ADR is appropriate).

For defendants, laches may offer a valid defence where limitation cannot otherwise step in, provided that they can demonstrate that allowing the claim to proceed would be inequitable – where they have relied on the claimant’s prolonged inaction to their detriment such as by distributing and spending inherited funds, or where the delay has caused the loss of crucial evidence, which could affect the ability for a fair trial.

It is also important to consider other potential defences and procedures in the event of delay, such as:

• acquiescence;
• Fitzhugh Gates and Cobden-Ramsay orders;
• Re Benjamin, Re Yorke and Re Beddoes orders;
• statutory defences under sections 26, 27 and 61 of the Trustee Act 1925; and
• limitation applicable in the wider context of private wealth disputes (eg, Inheritance Act claims, will rectification claims, claims for an interest in an estate, breach of trust claims and negligence).

Care: The Price to be Paid

With the rise in life expectancy, there is an increasing need for family members to deal with the care of elderly relatives. Although some family members provide support freely out of love or a sense of duty, is also not uncommon for those providing care to look for recognition and recompense for that care, whether limited to their expenses or through a person’s estate on death.

Some families are content to acknowledge the care, and sometimes sacrifice, given by the family member. In other cases, there may be a formal expressed agreement in place, which may include a contract (although not typical) or additional provision under a person’s will recognising the “value¨ of the care given.

Where this is not the case and, depending on the facts, the situation can give rise to claims under:

• the Inheritance Act 1975 – with the provision of care being considered as part of the historic “conduct” and the “moral obligations” owed to the claimant, albeit likely limited to maintenance need;
• proprietary estoppel – where specific promises or assurances have been given to those providing care and that this will be recognised in the form of later inheritance or monetary recompense (eg, Jennings v Rice); or
• as in the recent decision of Rogers v Wills [2025] EWHC 1367 (Ch), under contract law or a claim for unjust enrichment (see also Mate v Mate [2023] EWHC 238 (Ch), where unjust enrichment was found for the provision of services when proprietary estoppel fails).

The decision in another case decided in the South West – Roger v Wills – arguably paves the way for similar claims to be brought in relation to family caregiving arrangements.

It involved a daughter’s claim to be compensated for the care provided to her mother, who had asked that her daughter move in with her in Bristol.

Crucially, the arrangement was based on a mutual agreement and understanding that the daughter would be “paid properly” for her time and care. However, there was no written agreement, and no clear amount of money was discussed.

The daughter was left an equal share in her mother’s estate, together with her siblings. She brought a claim against the estate, arguing that her years of care were based on an agreement for the supply of services, which her mother promised to pay her for. Her siblings disagreed and contended that her claim should be limited to expenses but nothing further in the absence of a contractual agreement.

The court, however, established that a legally binding agreement did arise (even though in the domestic context). The judge further commented that even if a contract did not arise, the deceased had been unjustly enriched by the care received without paying for it.

The court also acknowledged the effect it had had on the daughter’s own lifestyle and loss of income. This case highlights that a statement of payment for care, even made informally, can constitute a binding agreement. Further, it shows that the provision of unpaid care at the expressed or implied request of the deceased can form the basis for a claim in unjust enrichment.