Clarke Willmott LLP has successfully represented Fiona Burgess in Burgess v Whittle & Anor [2025] EWHC 2633 (Ch), securing a court ruling that officially recognised her mother’s 2014 Will and brought an eight-year battle to an end.
The dispute arose following the death of Elizabeth Rowell in April 2017, with disagreements between claimant Fiona and her sister Julie Whittle over which of their mother’s Wills – one made in 1984 and the second in 2014 – should be admitted to probate and who should administer the estate.
Julie challenged the Will by seeking to propound the earlier 1984 Will, arguing that the later 2014 Will was invalid on the grounds of alleged lack of capacity due to early-stage dementia, undue influence, and procedural irregularities in its execution.
However, in his ruling, Honour Judge Paul Matthews, sitting as a Judge of the High Court, propounded the 2014 Will in solemn form, granting Fiona Burgess the legal authority to administer the estate under its terms.
“It is important to understand that the policy of the law is to enable persons who may be elderly, of modest or even limited intelligence, and even suffering from illness, and taking medication, to make wills. So, for example, simply being mistaken does not take away capacity,” said Judge Matthews.
Professor Alistair Burns CBE FRCP, FRCPsych, MD, MPhil, Consultant Old Age Psychiatrist, produced a retrospective assessment concluding that, on balance, the deceased had the capacity to make and execute the 2014 Will despite early-stage dementia.
A further judgment was handed down by Judge Matthews in relation to the costs which were awarded to Fiona on the indemnity basis with the judgment making it clear that speculative challenges of professionally drafted Wills carry serious costs consequences.
Indemnity costs are awarded only where a party’s conduct goes beyond ordinary reasonableness, reinforcing that professionally drafted Wills should not be lightly challenged without proper evidence.
The estate’s administration had effectively been frozen for eight years following a formal objection by Julie Whittle. After several unsuccessful attempts to resolve the dispute, Clarke Willmott was instructed to represent Fiona Burgess in March 2023.
Emma Ironside from Clarke Willmott’s private client litigation team, who led the case, said the judgment highlighted the value of specialist expertise in resolving a complex and long-standing dispute, bringing the matter to court and achieving a definitive resolution.
“Cases like this show how critical early legal intervention and careful case management are in contested probate matters,” she said.
“This case also demonstrates that a diagnosis of dementia, or other cognitive impairment, doesn’t automatically mean a lack of testamentary capacity. It is therefore important to seek prompt legal advice over any concerns regarding the validity of a Will in this regard.”
On the issue of capacity, the court reaffirmed that the Banks v Goodfellow (1870) LR 5 QB 549 test remains the governing standard for assessing testamentary capacity, and the Mental Capacity Act 2005 does not undermine or supersede that test (Re Clitheroe).
Senior associate, Emma was supported by solicitor Ellie Bond, and overseen by Bonita Walters, partner and head of Clarke Willmott’s Contentious Trusts & Probate team.
Specialist probate solicitors
Clarke Willmott’s contested probate team advises executors, trustees, beneficiaries, and other parties involved in Will disputes, providing guidance on issues including testamentary capacity, undue influence, and challenges arising from lost or disputed wills.
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