High Court Clarifies Role of Will Writers in Probate Disputes

The case of Ivey & Ors v Lythgoe & Anor [2025] EWHC 2325 (Ch) has shed light on how Courts will deal with negligence claims against will writers and the growing role of compulsory mediation in probate disputes.

The Background

David Ivey died in 2023 without a spouse or children. His nephews and niece claimed his estate, while his cousin relied on a later will.

• A 1994 will, apparently never executed, left the estate between David’s brothers and his partner at the time.

• A 2009 will, drafted by Trust Inheritance Ltd, went further than David’s written instructions and cut out not only his partner but also his brothers and their families.

The Claimants argued David either died intestate (without a valid will) or that the wills should be rectified. They also brought a negligence claim against the will writers.

The Application

The claimants asked the Court to bring Trust Inheritance Ltd into the probate proceedings as a ‘costs-only party’. This is someone added to proceedings just for the purpose of deciding who pays the legal costs. They don’t take part in the main dispute (for example, whether the will is valid), but they may be ordered to pay the costs if their actions caused the litigation in the first place.

The Claimants’ argument was simple: the will writers’ mistakes had caused the dispute, so they should be at risk of paying the legal bills.

Alternatively, the Claimants asked the Court to consolidate the negligence claim with the probate claim, so everything would be dealt with in one case.

The Court’s Decision

• The Judge refused a costs-only joinder. He explained that this procedure is only appropriate when negligence is admitted or obvious. Here, the will writers denied liability, so a full negligence trial was needed.

• Instead, the judge ordered consolidation, so the probate and negligence claims will proceed together.

• Once a party, the will writers could also be ordered to attend mediation, which the Court stressed was necessary given the modest size of the estate and the risk of costs overtaking its value.

Key Lessons

• For will writers and solicitors: drafting errors can land you not just with a negligence claim, but also directly inside contentious probate proceedings.

• For litigators: ‘costs-only party’ is not a shortcut where liability is disputed. Consolidation is the correct route if probate and negligence issues overlap.

• For everyone in this field: compulsory mediation is now part and parcel of probate litigation. Courts will not hesitate to order reluctant parties to the table.

Final Thought

This judgment is another step towards active judicial management of probate disputes: related claims will be pulled together, parties will be pushed into mediation, and professional advisers face real cost risks if their drafting goes wrong.