The High Court’s decision in this case offers a sobering reminder of how procedural failures can overwhelm the substantive merits of a probate dispute.
Although the case arose out of a family disagreement about two competing Wills, the appeal was ultimately decided on case management grounds. The judgment is therefore of particular interest to contentious probate practitioners, especially those acting for vulnerable clients or dealing with litigation friends.
The dispute in outline
The deceased, Kantaben Ratilal Patel, died in December 2020. In the final months of her life, she executed two Wills:
- a June 2020 Will, under which her daughter, Priti Patel, was appointed executrix and inherited the family home outright; and
- a July 2020 Will, prepared by a solicitor, which restructured the estate. The property was to be sold, provision was made for repayment of alleged family loans, and the residue passed elsewhere. The July will also contained a forfeiture (or “no‑contest”) clause, excluding any beneficiary who challenged its validity.
Ms Patel sought to revoke the grant of probate of the July Will and to propound the June Will instead. Parallel Part 8 proceedings were also issued by the executor, who by that point had obtained a Grant of Probate relying upon the July will, seeking directions concerning the administration of the estate.
Capacity and the appointment of a litigation friend
During the Part 7 proceedings, Ms Patel claimed to have lost capacity to conduct litigation and that she therefore became a Protected Party. Accordingly, Safina Bibi was appointed as her litigation friend.
From that point on, the litigation became increasingly procedural in focus. The court made clear directions for disclosure, witness evidence, and any application for expert evidence, all of which were designed to prepare the case for a listed five‑day trial.
Those directions were not complied with by the claimant (or her litigation friend).
No lay witness statements were served. No application was made for permission to rely on expert evidence. Repeated applications were instead made for adjournments and stays, relying on the claimant’s mental health difficulties as the basis for the same.
The difficulty for the claimant was an obvious one: the very reason a litigation friend had been appointed was to ensure that the case could progress notwithstanding her lack of capacity.
The critical hearing
By May 2025, the defendants applied for debarring orders and summary judgment. At the hearing on 30 May 2025, matters came to a head.
The district judge expressed serious concerns about the way in which the litigation had been conducted, including:
- reliance on medical evidence whose author’s qualifications were open to question (the judge found that the purported medical expert was a GP and not a psychiatrist, and further had been subject to sanction preventing the individual in question from practising as a GP in the UK);
- the absence of any meaningful explanation for the wholesale failure to comply with directions; and
- the inability of the litigation friend to explain what steps had been taken to progress the claim.
During the hearing itself, the litigation friend applied to withdraw as acting further as litigation friend, stating that this was her first experience acting in that role and that she felt out of her depth.
The orders made
The judge made a series of robust case management orders:
- the claimant was debarred from relying on any lay or expert evidence in support of her will challenge;
- the Part 7 validity claim was summarily dismissed, the court concluding that the claimant had no real prospect of success in the absence of evidence;
- the July 2020 will therefore stood and the challenge to it was treated as unsuccessful;
- the no‑contest clause was triggered, excluding the claimant from benefit under the will;
- consequential orders were made requiring the sale of the property and the claimant to give up possession; and
- indemnity costs were awarded against both the claimant and the litigation friend, jointly and severally.
The practical impact was severe. The claim did not fail after a trial on the merits, but because the claimant was procedurally unable to prove it.
The appeal
On appeal, Ms Patel argued that the outcome was disproportionate and unfair, particularly given her status as a protected party. It was said that the failures lay with the litigation friend and should not have been applied against the claimant herself and that the court should have made a further “unless” order rather than entering summary judgment.
HHJ Keyser KC largely endorsed the district judge’s approach, emphasising that:
- litigation friends bear real and substantive responsibilities;
- vulnerability does not displace the need for compliance with court orders;
- where a party is debarred from calling evidence essential to its case, summary judgment may follow as a matter of logic rather than punishment; and
- the court is entitled to act firmly where the conduct of proceedings threatens the proper administration of justice.
Notwithstanding the above observations, the judge decided that a further option, which had not been considered by the lower courts, would be a more appropriate outcome; that was to allow the claimant to rely upon her Particulars of Claim, which had been signed with a statement of truth at a time when she presumably had capacity, as her evidence in respect of the proceedings so as to enable the Trial to proceed. The judge therefore set aside the summary judgment on this basis.
Conclusion
Patel v O’Sullivan is a striking example of how case management could well have determined the outcome of the case. The claimant in this case only narrowly avoided summary judgment and, even then, only by pursuing an expensive and risky appeal. For contentious probate practitioners, it underlines the importance of tight procedural control, particularly where litigation friends and vulnerable parties are involved
How can we help?
Kevin Modiri is a Partner in our expert Dispute Resolution team, specialising in civil disputes, insolvency, inheritance disputes, data breach claims and defamation claims.
If you’re facing a defamation issue or need advice about protecting your reputation, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us