PT-2023-BRS-000112 - [2025] EWHC 2829 (Ch)

The sequence of events which are unchallenged, established from the documents in the case, or found by me in my substantive judgment, is as follows. The deceased made her will on 12 June 2014, using a will writing business called Future Legal Services. At that time she was living alone and looking after herself. The will appointed Abbotts Wills and Probate Services Ltd as executor. She died on 13 April 2017. By that time, the deceased was in a care home. On 4 May 2017, the first defendant (acting in person) lodged a caveat against probate of the 2014 will. Abbotts Wills and Probate Services Ltd (“Abbotts”) applied for probate, but could not obtain it so long as the caveat was in place. But Abbotts did make a Larke v Nugus request of Mr Wansbrough, who had taken instructions from the deceased on behalf of the will writers, and obtained full responses to their enquiries. Abbotts was dissolved in late 2020, before the caveat was lifted. A warning to the caveat was entered by the claimant and the first defendant’s son Matthew in June 2021, and the first defendant entered an appearance a few days later.

In September 2022, Future Legal Services confirmed to the first defendant that they had seen the original will after the deceased’s death and enclosed a copy of the signed will. In February 2023, the claimant sent the first defendant at her request copies of the will file and the medical records then in her possession, and provided contact details for the person who had taken instructions for the will. After further months of correspondence between the parties, the claimant issued the present claim on 7 September 2023. The first defendant (still acting in person) served her defence and counterclaim in October 2023. The claimant’s reply was served in the same month. In November 2023 the first defendant (again in person) purported to serve a “Second Reply and Further Defence to the Claim”.

In February 2024 the first defendant wrote to the claimant that she was “prepared to discuss a resolution of this matter through a mediation and suggest a return to the 1984 Will”. The claimant pointed out that there was a question mark over the capacity of the first defendant’s son Richard to give up his rights under the 2014 will. The claimant reiterated this in July 2024. The first CCMC took place before DJ Markland in August 2024. The judge sought, and obtained, confirmation from the first defendant that she was not seeking to adduce expert evidence on the deceased’s capacity. Consequently, no permission was given for such evidence. The costs of the CCMC were costs in the case.

In August 2024 the claimant wrote to the first defendant without prejudice, save as to costs, suggesting that the first defendant should file a notice of discontinuance and pay the claimant’s costs. The first defendant asked how much the claimant’s costs were, and this information was provided the same day (approximately £53,000). The next day, the first defendant offered the claimant £10,000 in respect of costs. This offer was rejected on 5 September 2024. On the same day, the claimant made an open offer to the first defendant whereby the first defendant would consent to a grant to the claimant of administration of the 2014 will with the will annexed, and would pay 75% of the claimant’s costs, to be assessed if not agreed. The first defendant rejected this offer a few days later.

On 29 September 2024 the claimant received a copy of the GP notes, after a request made under the relevant legislation. (I note in passing that the first defendant could have done the same.) The deadline for exchanging witness statements was 30 September 2024. On 8 October 2024 the claimant disclosed the GP notes to the first defendant, and invited the first defendant to withdraw her counterclaim. A week later, gunnercooke LLP gave notice that they were now acting for the first defendant. On 25 November 2024 DJ Markland heard three applications that had been issued by the first defendant on 31 October 2024.

The first was for relief from sanctions (for failure to file and serve witness statements on time). The second was for permission to instruct a joint expert on the deceased’s testamentary capacity. The third was for permission to serve notices of the claim on the first defendant’s two sons under CPR rule 19.13. The costs orders were the claimant’s costs in the case for the first, and costs in the case for the second and third. (There were also two additional applications for third party disclosure orders directed to Primary Care Support England and to Hampshire County Council. These orders were also duly made.)

On 31 December 2024, the claimant wrote again to the first defendant without prejudice, save as to costs. Once again, she suggested that the first defendant should file a notice of discontinuance, and consent to a grant to the claimant of administration of the 2014 will with the will annexed, but this time pay £60,000 towards the claimant’s costs, the balance of the claimant’s costs coming from the estate. At the end of January 2025 the first defendant disclosed to the claimant the records that she had obtained from Primary Care Support England and Hampshire County Council. A few days later, the claimant wrote to the first defendant noting that the further records did not support the claim of lack of testamentary capacity, and inviting the first defendant to reconsider her claim. The claimant’s offer of 31 December was withdrawn.

On 31 March 2025 the joint expert produced his report, in which he concluded that the deceased had had testamentary capacity at the time of making the will in June 2014. A week later, on 7 April 2025, the claimant wrote to the first defendant, again without prejudice save as to costs, referring to the expert’s report and informing her that the claimant’s costs now were about £100,000. The claimant proposed that the first defendant should file a notice of discontinuance, and consent to a grant to the claimant of administration of the 2014 will with the will annexed, but now pay £80,000 towards the claimant’s costs, the balance of the claimant’s costs coming from the estate. The claimant’s letter also warned that, if the matter proceeded to trial, the claimant would seek costs on the indemnity basis.

Two weeks later, the first defendant asked the expert various questions about his report. On 22 May 2025 the expert responded to those questions, and made a final report. The day before, the claimant had chased for a response to her offer of 7 April 2025. On 6 June 2025, having heard nothing in the meantime, the claimant withdrew her offer of 7 April 2025, and made a fresh offer, on similar terms but now seeking, not £80,000, but 80% of her costs from the first defendant. On 21 August 2025, DJ Markland heard the balance of the first defendant’s third application, together with an application to vary costs budgets. She ordered that the costs of that hearing be costs in the case. I held a pre-trial review on 11 September 2025, when I made the usual order of costs in the case in respect of that hearing.

On 6 October 2025 the first defendant made an offer to the claimant, without prejudice save as to costs. This was that the first defendant would consent to a grant to the claimant of administration of the 2014 will with the will annexed, and would pay 70% of the claimant’s costs on the standard basis, it being assumed the claimant had not yet incurred the brief fee. (In fact, she already had.) The claimant wrote the next day to the defendant requesting an improvement in the offer, pointing out that the brief fee was already incurred, and asking for a payment on account of £65,000, with the balance to be paid within 14 days of the final order. However, on 8 October 2025 the first defendant wrote to inform the claimant that there would be no further offer. This day was also the deadline for filing and serving skeleton arguments. The first defendant did not comply with it.

On 9 October 2025, the claimant left Australia to fly to the UK for the trial, due to begin on 14 October 2025. Also on 9 October 2025, the claimant made a further offer to the first defendant, that the first defendant should consent to a grant to the claimant of administration of the 2014 will with the will annexed, but now pay 80% of the claimant’s costs on the standard basis, with a payment on account of £75,000, and the balance of the claimant’s costs coming from the estate on the indemnity basis. On Friday, 10 October 2025 the claimant arrived in the UK.

On Monday, 13 October 2025, the day before the trial began, the first defendant filed and served her skeleton argument for trial. For the first time, she conceded the question of testamentary capacity, confirmed that the allegation of undue influence was not being pursued, and declared herself to be neutral, both on the question of want of knowledge and approval, and on the question of the admissibility of a copy will. In effect, there was no longer any opposition by the first defendant to the claim being made by the claimant. On the evidence before the court, the deceased had testamentary capacity at the time of executing the will, and the presumption of knowledge and approval of the contents of the will applied in the circumstances of the case. Moreover, the presumption of revocation by destruction did not apply. In the event, the trial lasted less than an hour. The claimant, who had flown from Australia, was tendered for evidence, but was not cross-examined.