PT-2023-BRS-000112 - [2025] EWHC 2633 (Ch)

This is my judgment on the trial of a probate claim concerning the estate of the late Elizabeth Rowell (“the deceased”), who died on 13 April 2017. The claimant and the defendants are the three (adult) children of the deceased. The claimant seeks to propound in solemn form a will dated 12 June 2014. The first defendant originally defended the claim, and counterclaimed to propound an earlier will dated 9 May 1984. The second defendant was and remains neutral as a party, and took no active part in the trial, though he made a witness statement, and was called as a witness, in support of the claimant’s claim. The first defendant has two children, Matthew and Richard. Matthew is a beneficiary under the 2014 will, and Richard (who is autistic) is an object of dispositive powers in the will trust contained in clause 7 of the 2014 will. The claimant and Matthew are named in the will as the trustees of the will trust.

At the pre-trial review before me, a question was raised as to the position of Richard, a doubt having been raised as to his capacity make his own decisions, and to participate in these proceedings. It was initially proposed that a notice pursuant to CPR rule 19.13 be served on Richard, once it was established that he did in fact have sufficient capacity. However there appeared to be some difficulty in arranging for an appropriate expert report on capacity in the timescale available. After discussion, I ordered that the relevant notice should be served on the trustees of the will trust, rather than on Richard, because they (and not he) were the legatees under the will. Those notices were in fact served on both the claimant and Matthew.

Both of them filed an acknowledgement of service form, indicating no intention to contest the proceedings in their capacity as trustees. Strictly speaking, I doubt that it was a proper for the claimant to file such an acknowledgement of service form, because she is already a party to these proceedings, and she cannot be a party twice over: cf Cotham School v Bristol City Council[2024] EWHC 154 (Ch), [22]-[63]. But I need not spend any further time on that. What is important is that the notice procedure means that there can be no doubt that the trustees of the trust legacy are bound by the result of these proceedings. If so, then so are the beneficiaries: cf CPR rule 19.10.