York Last year the High Court heard the case of Ellis v Ellis. This case concerned the disputed Will of Mr Care (Keith).
Keith; his elder brother Vivian Pearce Care (Vivien) and Luke Ellis were the only children of Mr and Mrs Care.
Keith died in March 2020. The main asset of Keith’s estate was land at Tregear Farm, Cornwall. The Farm was originally purchased by Mrs Care’s family in 1924. On her death the land and buildings at Tregear were divided between Vivien and Keith on the terms of their mother’s Will.
Keith’s Will was challenged by his brother Vivien on a number of grounds including mental capacity. He also brought a proprietary estoppel claim, arguing that he had been promised Keith’s share of Tregear Farm.
Proceedings were issued in July 2022 and in March 2023 Vivien invited Luke to mediate. Luke refused until September 2023. Eventually a mediation took place in November 2023 but was unsuccessful. On 15 January 2024 Luke made a without prejudice offer to settle the dispute; the offer was made as ‘a Part 36 offer’ which is an offer governed by Part 36 of the Court’s rules. The offer was to give Vivien two fields, two tractors and £20,000; it was not accepted and a trial took place in April/May 2024 with judgment being handed down in January 2025.The Judgment was bad news for Vivien Care. The court found entirely in Luke’s favour on all issues.
Following the decision in January the Court had to decide what costs had to be paid. There followed a costs hearing in July 2025 with the judgment being given in October 2025.
The costs decision was also bad news for the losing party. The court ordered the elder brother Vivien Care to pay all his younger brother’s costs on the ‘standard basis’ up to 5 February 2024 which was the last date on which the Part 36 offer to settle could be accepted without the court’s permission. After that date Vivien had to pay Luke’s costs on an indemnity basis (i.e. a higher percentage of costs) with interest on those costs at 5% above base rate. Vivien was also ordered to pay the executors’ litigation costs. In addition, and because Luke had made an offer to settle which had not been accepted, the court rules governing these types of offers meant that Luke was also entitled to an additional sum on top of the awarded costs sum based on a percentage of the total costs bill. The court ordered Vivien to make a payment on account of these costs to Luke in the sum of £94,000 (representing 90% of budgeted costs and 75% of incurred costs) and to pay 85% of the executors’ budgeted and incurred costs.
What lessons can we learn from this case?
The first lesson is that litigation is risky. The Judge at the trial simply preferred Luke’s evidence over Vivien’s. The Judge said that Luke Ellis’s witness statement was measured and if anything understated. He also said that “I found Luke Ellis to be honest and straightforward.” He was equally complimentary about Luke’s other witnesses. In contrast the Judge said that he found Vivien to be less straightforward than the other witnesses and that there were elements of his evidence that did not withstand scrutiny and he was not satisfied that his evidence was reliable.
Where the outcome depends largely on witness evidence the risks of going to trial and not being believed are high and unfortunately this is what happened to Vivien.
The second lesson is that a party to litigation ignores a sensible Offer to settle at their peril. In this case, the offer was a “Part 36 Offer”. This is a particular type of Offer that carries with it a very nasty sting in the tail for a losing party if it is not accepted.
Protect your interest before it’s too late
Contentious probate cases often involve emotional, complex disputes where relationships and significant sums are at stake. As Ellis v Ellis shows, waiting for “your day in court” can come at a high price.
If you are involved in a Will dispute, or believe you may have grounds to challenge one, early expert advice is essential.
Contact our Contentious Probate Team at Ware & Kay Solicitors, for clear, pragmatic guidance on your options and the best strategy to protect your position — before costs spiral out of control. Call York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email law@warekay.co.uk.
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