The High Court has handed down an important judgment in Ivey & Ors v Lythgoe & Anor [2025] EWHC 2325 (Ch), which will interest all practitioners handling contentious probate and advising on will preparation.
Background
David Ivey died in 2023, unmarried and without children. His estate became the subject of dispute between his nephews and niece (the Claimants) and his cousin, Susan Lythgoe (the first Defendant).
Two Wills lay at the heart of the case:
- A 1994 will, apparently never executed, which left the residue to David’s brothers and his partner at the time.
- A 2009 will, prepared by Trust Inheritance Ltd, following handwritten instructions to remove one beneficiary. The drafting went further than intended and removed David’s brothers and their issue altogether.
The Claimants argued David either died intestate, or that both wills should be rectified to reflect his true wishes. Alongside the probate proceedings, they also issued a negligence claim against Trust Inheritance Ltd for misinterpreting David’s instructions.
The Application
The Claimants sought to join Trust Inheritance Ltd as a costs-only party, or alternatively consolidate the negligence claim with the probate proceedings. They also asked the Court to compel the will writers to attend mediation scheduled for October 2025.
The Judgment
HHJ Paul Matthews rejected the costs-only route, holding that a section 51 Senior Courts Act application was inappropriate where negligence was contested. The company denied liability, and issues of causation and loss required a full trial.
Instead, the Court ordered consolidation of the negligence and probate claims. This ensured all interrelated issues would be dealt with together in the High Court.
On mediation, the Judge applied the principles from Churchill v Merthyr Tydfil CBC and CPR 3.1(2)(o). Once Trust Inheritance Ltd became a party to the proceedings, it could be ordered to attend ADR. The Judge emphasised the ‘tripartite litigation cries out for mediation’, given the clear disputes of fact, limited value of the estate, and disproportionate costs of a trial. Trust Inheritance Ltd was therefore required to participate in the October mediation.
Implications for Practitioners
- For will writers and private client advisers: this case highlights the exposure of will-drafting businesses – regulated or not- to negligence claims where instructions are mishandled. Errors may lead not only to rectification claims but also direct involvement in contentious probate proceedings.
- For contentious probate lawyers: the decision confirms that consolidation is the correct tool where negligence and probate issues overlap. Practitioners should be alert to managing proceedings holistically rather than piecemeal.
- For all litigation lawyers: compulsory mediation is here to stay. Courts are ready to require reluctant parties, including professional advisers, to mediate at an early stage to avoid disproportionate costs.
Conclusion
The judgment in Ivey v Lythgoe illustrates the modern judicial approach: consolidation of related claims, proactive case management, and a firm hand in directing ADR. For private client lawyers, the message is clear – be meticulous in recording and executing testamentary instructions and expect the Court to take a pragmatic, cost-sensitive stance if disputes arise.
John Lambe is Head of the Contentious Trusts and Probate team at Forbes Solicitors
