Burgess v Whittle: indemnity costs awarded after last-minute concession in probate dispute

In a costs judgement handed down on 3 November 2025, HHJ Paul Matthews awarded indemnity costs against an unsuccessful defendant who conceded her probate challenge only on the eve of trial, after more than eight years of litigation.

The dispute in Fiona Jane Burgess v Julie Elizabeth Whittle & Anor [2025] EWHC 2829 (Ch) concerned the validity of a 2014 will. The deceased had changed her testamentary dispositions following an estrangement with her daughter, the first defendant, in 2009. Under the contested will, the share that would have gone to the first defendant instead passed to her two sons.

The first defendant lodged a caveat against probate in May 2017, shortly after her mother's death. She challenged the will on four grounds: lack of testamentary capacity, want of knowledge and approval, undue influence, and absence of the original will. The claimant eventually issued proceedings in September 2023, more than six years after the death.

The probate exceptions to costs

The first defendant sought to rely on the second exception in Spiers v English [1907] P 122, arguing that reasonable suspicions about the will's validity justified the investigation. This exception provides that where sufficient and reasonable grounds exist to question a will's execution or the testator's capacity, an unsuccessful party may be relieved from paying their opponent's costs.

HHJ Matthews firmly rejected this submission. The evidence available before proceedings were issued pointed entirely towards the will's validity. The deceased had made the will professionally and independently through a will-writing firm. The estrangement provided a clear reason for the testamentary change, and the estate remained within the family. In September 2022, the will-writers confirmed they had seen the original will after death, eliminating any basis for suspecting destruction.

When the claimant provided the will file and medical records in February 2023, neither gave grounds for suspicion. The first defendant took no steps to obtain medical or social care records herself until October 2024, more than a year after proceedings commenced. When eventually produced, those records provided no support for her case.

Conduct warranting indemnity costs

The judge found three factors justified departing from the standard basis of costs. First, the challenge was "entirely speculative and objectively weak", with no evidence supporting any of the four grounds advanced. The first defendant failed to seek evidence of incapacity until over a year after issuing her defence, and when obtained, including a joint expert's report, it contradicted her position.

Second, the first defendant effectively conceded on 13 October 2025—the day before trial—through a skeleton argument filed four days late. By then, the claimant had travelled from Australia specifically to give evidence. The concession abandoned all substantive challenges, rendering the trial effectively uncontested.

Third, despite multiple settlement offers from the claimant throughout 2024 and 2025, the first defendant refused to engage meaningfully. Her own two offers made insufficient provision for costs and failed to address practical issues regarding her son's capacity to consent.

HHJ Matthews concluded the first defendant's conduct was "grossly unreasonable", taking more than eight years to accept there was no basis for challenging the will. This conduct fell "well outside the norm", warranting indemnity costs.

Payment on account and estate indemnity

The judge ordered an interim payment of £109,000 by 17 November 2025, noting that where indemnity costs are awarded, the usual practice of setting payments at 90% of approved budgets becomes less relevant, as CPR 3.18 does not apply to indemnity assessments.

Additionally, following Sutton v Drax (1815) 2 Ph 323, the claimant was granted an indemnity from the estate for costs not recovered from the first defendant. As a successful legatee propounding a will, she was entitled to the same protection an executor would have received, having fulfilled the executor's duty in establishing the will's validity.

The judgement serves as a stark reminder of the costs consequences flowing from maintaining speculative probate challenges without evidential foundation, particularly when combined with unreasonable litigation conduct and last-minute capitulation.