When challenging a will goes too far: lessons from Burgess v Whittle (England and Wales)

The recent High Court decision in Burgess v Whittle is a stark warning that pursuing (or continuing to pursue) a weak or speculative will challenge without solid evidence can cost you dearly. For Julie Whittle, the first defendant and a litigant in person, the consequence was indemnity costs against her to the tune of £155,000 plus interest. 

This case will be welcome news to those who find themselves forced into defending unmeritorious claims issued by individuals who, often convinced their suspicions are evidence, cause unnecessary litigation, delay and cost. 

What was the case about?

Mrs Rowell had made a Will in 1984 dividing her estate equally between her three children: Fiona, Julie and Robert. Mrs Rowell and Julie had a difficult relationship. In 2009 this escalated and 'they became badly estranged'. On numerous occasions Mrs Rowell told Julie she intended to cut her out of her will. In 2014 Mrs Rowell carried out this threat and went to see will writers. She made a new Will excluding Julie and instead giving Julie's one-third share to Julie's two children.

Mrs Rowell died in 2017. Julie entered a caveat (blocking the administration of the estate) and alleged the 2014 Will was invalid on the grounds of lack of capacity, want of knowledge and approval, and undue influence by the will writer. An added complication was that the probate registry had lost the original of the Will which, Julie argued, meant it was invalid.

On paper the first three grounds can form the basis of a genuine validity challenge (the fourth does not make a will invalid!). The problem for Julie was a lack of evidence on the facts and the way she conducted the case over time.

In September 2022 the will writers confirmed to Julie that they had seen the original of the Will after Mrs Rowell's death. Nevertheless Julie persisted in the 'lost will' argument.

In February 2023, Fiona sent Julie copies of the will file and the medical records in her possession. On its face the Will was rational and all the evidence pointed towards its validity.

Fiona issued proceedings in September 2023 seeking probate of the 2014 Will in solemn form.

Despite receiving significant evidence pointing to the Will's validity, Julie did not meaningfully progress or set out her allegations. Expert evidence was not pursued in good time: despite Julie confirming in August 2024 (at the case management hearing) that she was not seeking permission for expert evidence on capacity, she 'u-turned' in November and belatedly asked for permission. The following March, the report came in and confirmed her mother had capacity to make the Will. 

Julie repeatedly refused reasonable settlement offers and, in the end, abandoned her claims very late in the day – withdrawing the undue influence allegation and conceding on capacity the day before trial. She declared herself 'neutral' on knowledge and approval and on the 'lost will' argument. The trial lasted less than an hour, and key witnesses (including Fiona, who had travelled from Australia) were not even cross-examined. 

The judge described Julie's challenge as 'speculative, weak, opportunistic or thin': all available evidence supported the Will’s validity and there was nothing in Mrs Rowell's actions or the circumstances that justified an investigation. As summarised by the judge, estrangement alone does not give rise to suspicion: 'people fall out' – and they are entitled to change their wills as a result.

What happened on costs – and why does it matter?

The general rule is that the unsuccessful party in proceedings pays the costs of the successful party. However, costs are in the court's discretion and it may make a different order.

In deciding whether to make an order, and if so what, the court will have regard to all the circumstances, including the conduct of all the parties and any admissible offer to settle the case which is drawn to the court's attention.

The case of Spiers v English [1907] sets out two further points for the court to consider in probate disputes:

• 'whether the litigation was caused by the testator or a beneficiary. If so, the court may order the unsuccessful party's costs to be ordered out of the estate'; and
• 'whether the circumstances, including the knowledge and means of knowledge of the opposing party, led reasonably to an investigation of the matter. If so, the court may make no order as to costs'.

In Burgess v Whittle the court confirmed that these two exceptions are narrow. For the second limb, an initial investigation might sometimes be reasonable, but it cannot justify years of litigation once the evidence points firmly in one direction.

Julie persisted without evidence and refused reasonable opportunities to settle. Her conduct was 'out of the norm' and, as a result, the court ordered she pay Fiona's costs on the indemnity basis (which allows for a higher recovery by the payee than the ordinary standard basis). It also ordered her to pay a substantial interim payment of £109,000 towards those costs, together with interest (2% above the Bank of England base rate until judgment and 8% thereafter) and allowed Fiona to recover the balance of her costs from the estate.

Conclusion

This decision should not discourage people from raising legitimate concerns over a will's validity. Courts recognise that wills can (and sometimes should!) be challenged. But it is a stark reminder that suspicion must be backed up with evidence and litigants should reassess the merits of their position as a case develops.

Pursuing (or continuing to pursue) a will dispute as a matter of principle, or because of unresolved family grievances, can expose you to serious financial consequences. Acting without lawyers does not remove that risk.