Katie Alsop, Partner and Head of Disputed Wills, Trusts and Estates for Leamington Spa, and Charlotte Kahrman, Associate, both of HCR Law, examine the judgments in Ellis v Ellis (in which they acted for the successful Claimant) and the practical lessons they offer on both evidential scrutiny and costs risk.
Ellis v Ellis & Ors (Re Care, Deceased)
Two High Court decisions in Ellis v Ellis & Ors (Re Care, Deceased) show how quickly a will dispute can turn into an unsuccessful party having ‘had their day in Court’ but losing at great expense.
In the substantive judgment [2024] EWHC 3416 (Ch) opens new window, the Court dealt with the usual battlegrounds of contentious probate:
- due execution
- testamentary capacity
- knowledge and approval
- proprietary estoppel
But all the above were framed, in this instance, as counter-claims in response to a claim for a Grant in Solemn Form by the residuary beneficiary.
In the costs judgment [2025] EWHC 2609 (Ch) opens new window, the aftermath was addressed, including whether the estate should bear costs, whether mediation conduct mattered and whether CPR Part 36 changed the outcome. The combined lesson is straightforward: a case may justify investigation at the outset, but that does not protect an unsuccessful party from the ordinary consequences of civil litigation.
The will challenge
Facts
The dispute concerned the estate of Yeamon Keith Care, known almost exclusively as Keith. The principal asset of the estate was Tregear Farm in Cornwall, where Keith maintained his rare breed Dairy Shorthorn herd; recognised as one of only two remaining herds of its specific pure pedigree type in the world.
Keith’s will dated 2016 named Luke Ellis, a local farmer and friend of Keith, as the principal beneficiary. Keith’s brother, Vivian Care, challenged the validity of the will as well as advancing a proprietary estoppel claim in the alternative. The case therefore combined a conventional probate attack with a broader equitable claim based on alleged promises as to the future of Tregear Farm.
Claimant’s argument
After a period of inactivity on Vivian’s part, such that the administration of Keith’s estate could not be progressed, Luke issued a claim for a Grant in Solemn Form in respect of the will. Luke’s position was that the will had been properly executed, was rational on its face and had been prepared with solicitor involvement. He maintained that Keith had testamentary capacity and understood and approved the contents. He also argued that the estoppel claim failed because there was no sufficiently clear assurance, reliance or detriment.
Defendant’s arguments
Vivian issued a challenge to the validity of the will on three grounds: lack of due execution; lack of testamentary capacity; and lack of knowledge and approval. In the alternative, Vivian claimed to be entitled to Keith’s share of Tregear Farm; he said promises had been made about the future of Tregear Farm which allowed him to make out a claim based on the grounds of proprietary estoppel.
Decision
The court upheld the validity of the will. The judgment is notable for its detailed assessment of the witness evidence and its recognition of the practical realities of farming life. HHJ Berkley found that the will had been duly executed, that Keith had testamentary capacity and that he understood and approved what he was signing. Particular points of note from each ground of challenge are:
- The will had been duly executed. It was witnessed by Keith’s GP (Dr Fairlie), described as a ‘veteran witnesser of wills’ and by Mr Peter Clarke MBE who was a volunteer for the local Farm Community Network (as it then was). The presumption of due execution was not displaced by Dr Fairlie’s inability to recall Mr Clarke being present in what the Court accepted was a brief encounter.
- The suggestion that Keith’s devotion to his animals gave rise to a personality disorder depriving him of testamentary capacity was rejected. The evidence showed that Keith remained intellectually engaged, often listening to Radio 4 and socially connected. As the judge noted, ‘many farmers never give up until it is impossible to continue’, and Keith’s attitude to his animals was ‘cautious and caring’, not obsessive. Keith also had rational reasons for deciding that his family should not be responsible for his beloved animals, particularly given the lack of evidence of any close or continuing relationship between Keith and Vivian or his sons.
- No suspicious circumstances were found in the context of the knowledge and approval claim. The will had been professionally drafted by an experienced private client specialist and she discussed it with Keith at a meeting attended by his proposed executors and Mr Clarke. The Court was satisfied that he knew and approved its contents.
The proprietary estoppel claim also failed because the evidence did not establish a clear enough promise to justify relief. While there may have been a general expectation that Tregear Farm would remain in the family, the judge found that anything Keith had said reflected no more than his intention at the time. It did not amount to the kind of clear assurance needed to support a proprietary estoppel claim. Nor was there convincing evidence that Vivian had acted to his detriment in reliance on any such promise. Indeed, evidence was uncovered to suggest the opposite and which he had not disclosed in the course of the proceedings. The family’s sense of disappointment was genuine, but it did not justify a legal remedy.
The judgment is a reminder that, even in highly personal family disputes, the court still applies well-established contentious probate principles in a disciplined way.
The costs fight
Facts
The second judgment dealt with the costs and consequential directions. Having succeeded on obtaining a declaration that the will was valid and defeated the proprietary estoppel claim, Luke sought the usual order that costs follow the event. The Court had to decide whether the recognised probate exceptions applied, whether anything in the pre-action conduct or approach to mediation justified a different order, and whether a Part 36 offer altered the costs position.
Claimant’s arguments
It was argued on Luke’s behalf that the ordinary CPR rule should apply and that there was no good reason to depart from costs following the event. It was also argued that a Part 36 offer made in advance of the trial had been a genuine settlement attempt and should have the usual consequences.
Defendant’s arguments
Vivian’s legal representatives said there should be no conventional costs order because of alleged shortcomings in pre-action conduct, including the absence of an adequate letter of claim, and because of Luke’s approach to mediation. It was also argued that this was the type of probate dispute in which costs should fall on the estate, either because Keith had caused the litigation or because there had been reasonable grounds for investigation.
Decision
The key conclusions reached by HHJ Berkley are as follows:
- The argument that Keith had caused the litigation was rejected and it was held that any period of reasonable investigation had expired before the Court proceedings were issued, particularly since the executors had given Vivian authority to obtain medical records and other documents to enable him to investigate. The latter point underlines the value of early voluntary disclosure.
- Luke’s delay in agreeing to mediation was found to be reasonable, in circumstances where Vivian had refused to give voluntary disclosure. The failure to issue a letter of claim when properly it was for Vivian to send a letter of claim in respect of the allegations he had made, was not treated as material because doing so would have made no difference to the trajectory of the litigation and it therefore did not warrant any costs sanction.
- The Part 36 offer made by Luke was held to be valid and genuine and so the usual costs consequences were applied. The offer amounted to approximately 14.6% of the estate.
Vivian was also ordered to pay the executors’ costs to avoid unfairness to Luke. Had the executors’ costs been ordered to be paid from the estate, in reality this would have meant Luke bearing the costs as sole residuary beneficiary.
Summary
For contentious probate practitioners, the value of these decisions lies in the combination of the substantive judgment and the standalone costs considerations. The first is a reminder that attacks on execution, capacity and knowledge and approval still stand or fall by settled principles and careful evidence.
The second is a warning that contentious probate litigation is not somehow exempt from mainstream costs discipline. Advisers considering a will challenge should therefore ask two questions in early course: is there enough evidence to justify taking the case through trial, and does the client fully understand the costs risk if the challenge fails?
About the author
Katie Alsop opens new window (Partner) and Charlotte Kahrman opens new window (Associate) both specialise contentious probate and proprietary estoppel matters at HCR Law opens new window based in the Leamington Spa office.
See also
Place a deceased estates notice
What to do if a beneficiary has been excluded
Can you disinherit someone in your will?
Find out more
Luke Ellis v Stephen Ellis & Ors [2024] EWHC 3416 (Ch) opens new window (Find Case Law)
Luke Ellis v Stephen Ellis & Ors [2025] EWHC 2609 (Ch) opens new window (Find Case Law)
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Publication date
9 June 2026
Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.