A costs judgement highlights the importance of early disclosure, genuine settlement efforts, and the limits of the probate exceptions in modern litigation.
This case concerns the disputed will of Yeamon Keith Care (Keith), a disabled Cornish farmer who died in March 2020, leaving behind a rare breed herd and a contested estate. The claimant, Luke Ellis, propounded Keith’s 2016 will, naming him as the principal beneficiary. The third defendant, Vivian Care, Keith’s elder brother, challenged the will’s validity, alleging lack of testamentary capacity and seeking a remedy under proprietary estoppel. The first and second defendants, Stephen Ellis and Stephen Berryman, were executors of the estate but took no active part in the proceedings.
The dispute centred on Tregear Farm in Cornwall, farmed by successive generations of the Care family. Known for breeding rare Dairy Shorthorn, Keith Care farmed well into later life despite severe scoliosis leaving him unable to sleep in a bed and almost bent double by the end of his life. He was supported by local farmers, charities and rare breed enthusiasts, including the claimant, Luke Ellis, to whom he left his share of Tregear Farm.
A substantive judgement was handed down earlier this year regarding the validity of the Will, which was found to be valid, and a proprietary estoppel claim brought by Keith Care’s brother wchi was ultimately unsuccessful.
A subsequent costs judgement was handed down this week reminding practitioners of the careful balancing act courts must perform in probate litigation
The judge began by affirming the general rule under CPR 44.2(2)(a): the unsuccessful party pays the successful party’s costs. However, in probate litigation, two common law exceptions from Spiers v English [1907] P 122 may justify a departure from this rule aiming to strike a balance between proper scrutiny and unnecessary litigation.
- Where the testator caused the litigation.
- Where the circumstances reasonably required investigation.
In this case Vivian Care argued that both exceptions applied. He claimed Keith’s conduct in raising expectations the farm would remain in family, had caused the litigation. He also argued that the circumstances warranted investigation, particularly due to conflicting evidence about the will’s execution and Keith’s mental capacity.
Rejecting both claims, the judge said the court found no confusion or uncertainty in Keith’s testamentary papers. Keith had engaged professionals, and the will was clear and properly executed.
Acting for the defendant, Katie Alsop , Partner in the Contentious Probate Team at Wright Hassall explained on the second point
“The court also found that any period of reasonable investigation for the purposes of the second exception had expired prior to the issue of proceedings, in circumstances where the executors had given Vivian authority to obtain medical records and other documents to enable him to investigate the position – a point which underscores the importance of early voluntary disclosure in cases of this description.”
The judge did allow a limited costs concession: no order for costs up to August 2021 for general claims and up to March 2022 for the due execution issue.
Throughout proceedings the judge considered the defendant’s conduct was fair; any delay in agreeing to mediation was reasonable in circumstances where Vivian had refused voluntary disclosure. Luke’s failure to issue a pre-action letter made no difference to the trajectory of the litigation and did not justify any costs sanction. Luke had waited for over two years after Keith’s death, and Vivian had repeatedly failed to provide a letter of claim or disclose key documents.
A pivotal aspect of the judgment was Luke’s Part 36 offer made on 15 January 2024, proposing to transfer land, tractors, and £20,000 to Vivian, with Vivian to pay Luke’s costs. Despite Vivian’s objections, the court held the offer was valid and genuine (amounting in terms of value to around 14.6% of the estate); CPR 36.17 consequences would therefore apply, including indemnity costs from February 2024, interest at 5% above base, and a 10% uplift on costs.
The judge awarded Vivian to pay the executors’ litigation costs on the standard basis, subject to the limited “no order” periods, with a payment of £94,000 on account approved.
Commenting on the decision Alsop concluded:
“This case serves as an important reminder of the court’s pragmatic approach to assessing both the evidence and the human realities underpinning inheritance disputes – especially where witnesses are independent, with nothing to gain from the litigation. HHJ Michael Berkley’s judgment highlights the importance of contemporaneous professional involvement and documentation of that, and the need for full and transparent disclosure. In so far as the Costs Judgment is concerned, it very much brings home the need to seriously consider Part 36 offers and assess exposure to costs risk. We’re pleased to have supported our client in achieving the right outcome in what was an emotionally-taxing dispute, and where it was paramount that we honoured the Deceased’s legacy.”
