The High Court’s decisions in the Burgess v Whittle case offer a striking illustration of the risks associated with bringing a poorly evidenced will challenge.
What began as a family dispute in 2017 culminated in 2025 with the court not only upholding a professionally drafted will, but also issuing a strong costs warning to litigants who advance claims on a speculative or weak basis.
At the heart of the case lay familiar issues: a testator with some cognitive decline, a later will that departed from an earlier one, and family tensions that had developed over time. But what makes the Burgess v Whittle case noteworthy is the court’s firm stance on litigation conduct and the consequences of pursuing a challenge without adequate evidential foundation.
The dispute concerned a 2014 will made by the deceased, replacing an earlier 1984 will. The deceased passed away in 2017 aged 82. She had survived her husband, and left three adult children – two daughters, the claimant and the first defendant, and a son, the second defendant.
Almost immediately upon the deceased’s death, the 2014 will was challenged by one of her adult daughters, who entered a caveat. The first defendant alleged lack of testamentary capacity, want of knowledge and approval, undue influence, and that the original 2014 will could not be admitted because it had been lost.
The procedural history was lengthy. The proceedings (to prove the 2014 will) lasted for eight years, throughout which the first defendant did not meaningfully develop or particularise her allegations challenging that will. The undue influence claim was then withdrawn the day before trial, and the capacity challenge was conceded during the trial once expert evidence and contemporaneous medical records were considered.
Despite the loss of the original will, which had been misplaced by the Probate Registry, the court was satisfied that the 2014 will had been properly executed and accurately reflected the testator’s true intentions. A copy was admitted to probate.
Following the substantive judgment, the court turned to costs. This is where the Burgess v Whittle case becomes recommended reading for anyone considering a contentious probate claim.
Probate litigation has certain recognised 'exceptions' to the usual costs rules. In some cases, even unsuccessful challengers can avoid an adverse costs order, for example where the testator’s actions or the surrounding circumstances reasonably call the validity of the will into question.
The first defendant invited the court to apply this principle. The court declined.
Why? Because the challenge was 'speculative, weak, opportunistic or thin' in the judge’s words
The judge found:
The consequences were severe:
The judgment sends a clear message: probate litigation is not a forum for unparticularised suspicion, emotional grievance, or last-minute withdrawals. Evidence must lead the case - not the other way around.
Challengers must obtain and examine:
Without those foundations, a challenge risks being categorised as speculative.
Waiting years before investigating the merits of a challenge, only to concede the core issues shortly before trial, is likely to be viewed as unreasonable conduct and will have costs consequences.
Undue influence in probate is notoriously difficult to prove. Courts expect clear, cogent evidence. Bare allegations will not suffice and can increase costs risks for the party alleging undue influence.
Reasonable offers, especially where the evidential prospects are weak, should not be dismissed. Failure to engage constructively in settlement discussions may influence future costs decisions.
Where a will is prepared by a solicitor, capacity is considered, and an attestation clause is present, the burden on the challenger is high.
For solicitors and will-writers, the judgment serves as a reminder of the protective value of clear file notes, capacity assessments where appropriate, and careful execution procedures.
For contentious probate practitioners, it reinforces the importance of early advice, candid risk assessments, and ensuring clients understand the financial consequences of pressing ahead with weak claims.
The Burgess v Whittle case stands as a strong warning against speculative will challenges. While it is entirely right that suspicious or genuinely uncertain circumstances surrounding a will should be investigated, this case demonstrates that where a challenge is unsupported - particularly when that is the case for many years - the court will not hesitate to impose indemnity costs.
More broadly, the decision underscores a principle that resonates across the field of probate litigation: in disputes over a person’s final wishes, evidence must guide the litigation - not emotion, assumption or hope.
For further information, please contact our disputed wills team.
