The Chancery Division’s decision in Burgess v Whittle serves as a stark warning to anyone contemplating a speculative challenge to a will. The court held that the first defendant’s prolonged and baseless attempt to dispute the validity of a 2014 will, abandoned only a day before trial, was entirely unreasonable.
The result: the defendant was ordered to pay the claimant’s costs on the indemnity basis, with interest and a £109,000 payment on account, after the court found that the usual probate costs exception in Spiers v English did not apply.
Background and facts
The deceased made her will through Future Legal Services in June 2014, appointing Abbotts Wills and Probate Services Ltd as executor. She died on 13 April 2017, by which time she lived in a care home.
The will excluded the first defendant (a close family member) following an estrangement, instead leaving her intended share to the defendant’s two sons.
In May 2017, the first defendant entered a caveat, blocking the issue of probate. Despite being given ample evidence confirming the will’s authenticity, she failed to progress her challenge for several years.
Key points in the procedural history include:
- 2021–2023: The claimant provided the will file and medical records to the first defendant;
- September 2023: The claimant issued a claim seeking probate in solemn form;
- March 2025: A joint expert report concluded that the deceased had testamentary capacity when the will was executed; and
- October 2025: The first defendant conceded the case one day before trial, withdrawing her allegations of undue influence and capacity issues.
The trial lasted less than an hour. The claimant who had flown from Australia to attend, was tendered for cross-examination but not questioned. Judgment was handed down the following day, confirming the will’s validity.
Arguments on costs
For the Claimant:
- Sought indemnity costs, with a payment on account and interest at 2% above the Bank of England base rate;
- Submitted that the defendant’s case was “speculative, weak, opportunistic or thin” and that all available evidence before proceedings supported the will’s validity;
- Requested that any unrecovered costs be payable out of the estate.
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The defendant:
- Sought to avoid any order for costs, arguing the case fell under the second rule in Spiers v English, which confirms that the circumstances surrounding creation of the will reasonably led to the need for investigation; and
- Claimed she had acted in good faith and was entitled to neutrality in costs.
The court’s reasoning
The court rejected the defendant’s reliance on Spiers v English, finding no reasonable grounds for her challenge:
- The estrangement between the deceased and the first defendant did not justify suspicion of undue influence or incapacity;
- The will was made professionally, independently and rationally, with clear reasons for the dispositions made;
- The defendant took no meaningful steps for several years to investigate the will’s validity, even after being provided with full documentation; and
- When medical and expert evidence became available, it consistently supported the will’s validity — yet the defendant persisted until the eve of trial.
On that basis, the court found her conduct to be “well outside the norm”, satisfying the test for indemnity costs established in De Sena v Notaro [2020] EWHC 1366 (Ch).
The court also noted:
- The defendant rejected reasonable settlement offers and made inadequate ones in return;
- Her late concession, especially after the claimant’s costly international travel, was unreasonable; and
- Her earlier status as a litigant in person provided no shield against adverse costs, citing Barton v Wright Hassall LLP [2018] 1 WLR 1119.
Regarding interim payments, the court relied on Learning Curve (NE) Group Ltd v Lewis [2025], confirming that where costs are awarded on the indemnity basis, the approved costs budget is not determinative.
The decision
The Chancery Division ordered that:
- The first defendant pay the claimant’s costs on the indemnity basis, to be assessed if not agreed;
- The defendant make a payment on account of £109,000 by 17 November 2025;
- Interest on costs accrue at 2% above the Bank of England base rate until judgment, and 8% thereafter under the Judgments Act 1838;
- The claimant recover any remaining costs from the estate, as permitted under Sutton v Drax (1815) and Wilkinson v Corfield (1881), which recognise that a legatee successfully propounding a will stands in the same position as an executor for costs purposes.
Conclusion
The outcome in Burgess v Whittle reinforces a clear message:
Probate disputes must be pursued with evidence and proportionality, not speculation or sentiment.
Where a challenge is pursued without foundation, and especially when it is abandoned only at the last minute, the court will not hesitate to award indemnity costs, ensuring that the successful party is made whole.
In the words of the judgment, the defendant’s conduct was “well outside the norm” and so were the financial consequences.
How can we help?
Amrik Basra is an Associate in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the above subject, don’t hesitate to get in touch with Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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