The recent decision in Ivey & Ors v Lythgoe & Anor [2025] EWHC 2325 (Ch) highlights the increasingly interventionist approach taken by the High Court and the steps to be taken when probate disputes overlap with allegations of professional negligence. Rachel Waller – contentious trusts, wills and estates partner at Excello – explains the significance of this decision and what it means for practitioners in this short article.
How the dispute arose
When David Ivey died in 2023, his estate quickly became the subject of competing claims.
The case revolved around two instruments: an unexecuted 1994 draft will that favoured Ivey’s brothers and his then-partner, and a 2009 will prepared by Trust Inheritance Ltd. The latter had been drafted following a handwritten request to exclude a single beneficiary (an ex-partner). The drafting, however, went considerably further and also removed his brothers.
His nephews and niece claimed that the estate should be administered either under a corrected version of the wills or under the rules of intestacy. By contrast, his cousin, Susan Lythgoe, relied on a the 2009 will. The Claimants not only challenged the testamentary documents but separately alleged that the will writers had been negligent in preparing the 2009 will.
Procedural issues before the Court
Ahead of trial, the Claimants sought to involve the will-writing company in the probate claim. Their primary proposal was to add Trust Inheritance Ltd purely for the purpose of determining costs, arguing that the drafting errors had triggered the litigation in the first place. Alternatively, they sought to consolidate the negligence claim with the probate proceedings.
The Claimants also invited the Court to ensure the will writers were compelled to attend mediation that had already been fixed for later in 2025.
Why consolidation was ordered
His Honour Judge Paul Matthews declined to add the will writers on a costs-only basis. That mechanism, the Court said, is only properly used where wrongdoing is accepted or is beyond reasonable dispute. Here, Trust Inheritance Ltd denied the allegations, so matters such as causation and whether any loss had been suffered required full exploration.
Given the overlap between the issues, the Court instead directed consolidation. This allows all the factual and legal questions – construction of the wills, rectification, and the negligence claim – to be dealt with in a single High Court claim.
The Court’s approach to mediation
Once consolidation was ordered, Trust Inheritance Ltd became a substantive party. That opened the door to the Court directing its participation in mediation under CPR 3.1(2)(o) and the principles confirmed in Churchill v Merthyr Tydfil (which confirmed that the courts can order parties to engage in Alternative Dispute Resolution). The Judge noted the limited value of the estate, the significant factual disputes between the three sides and the risk that costs could eclipse the assets. Against that
backdrop, the Court considered the case “one that calls out for mediation” and ordered the will writers to take part in the October session.
What this means for practitioners
This case is relevant to will-writers, contentious probate lawyers and all litigators. Essentially, any will-drafter, whether solicitors or unregulated, faces real exposure where instructions are not handled carefully. Disputes may extend beyond rectification and draw them directly into litigation.
In the meantime, specialist contentious probate lawyers should anticipate that negligence and probate claims will often be treated as indivisible. Running them separately is unlikely to find favour where the issues are intertwined.
Finally, the case is relevant to any litigator as there is now an expectation that the Courts will be assertive in requiring ADR, especially in lower- to mid-value estates where proportionality is paramount.
Conclusion
The judgment in Ivey v Lythgoe underscores the Courts’ preference for unified case management and their willingness to mandate mediation. It is a timely reminder that clear, accurate recording of testamentary intentions is essential, and that missteps in will drafting can have extensive procedural consequences.
