The hidden dangers of unregulated will drafting: Lessons from Ivey v Lythgoe

By Justin Briggs

11 Nov 2025 5 min read

The High Court’s decision in Ivey & Ors v Lythgoe & Anor [2025] EWHC 2325 (Ch) offers a stark reminder of the risks associated with unregulated will-writing services. HHJ Paul Matthews’ judgment lays bare the procedural consequences and relational damage that can result from poor drafting and inadequate legal advice.

Background to the dispute

The case involved a family dispute over land and assets following the death of David Ivey, with litigation arising from two wills prepared by a commercial will-writing company (the ‘1994 Will’ and ‘2009 Will’). These documents were found to be ambiguous, poorly executed, and lacking in professional rigour.

The Claimants were Mr Ivey’s beneficiaries on intestacy and of the 1994 Will, asking that the 2009 Will be set aside for absence of knowledge and approval, and due execution under the Wills Act 1837. Alternatively, they sought rectification should either of the Wills be admitted to probate. The First Defendant, who was the sole beneficiary of the 2009 Will, defended the claim.

The Claimants had separately issued protective proceedings in negligence against the commercial will-writing company, Trust Inheritance Limited.

The Claimants applied for orders for:

Trust Inheritance Limited to attend mediation;
Trust Inheritance Limited to be joined as a costs-only party to the probate/ rectification claim; and
Consolidation of the claims.

Judge Matthews ordered the consolidation of the negligence and probate/ rectification claims and that Trust Inheritance Limited attend mediation.

However, the application to join Trust Inheritance Limited as a costs-only party was refused as, where negligence was contested and the rectification claim was yet to be tried, it would be putting ‘the cart before the horse’ for the court to exercise its discretion under s. 51 of the SCA 1981.

The importance of Alternative Dispute Resolution (ADR)

“I consider that this tripartite litigation cries out for mediation. There is no new law involved, and the essential disputes of fact are both clear and not numerous. The important documents have already been disclosed. The value of the claims will quickly be exceeded by the costs of a trial. The best chance of resolving the matter will come earlier, when fewer costs have been incurred, compared to later.”

These comments by Judge Matthews at [26] are emblematic of the courts pragmatic approach to the, now enshrined, jurisdiction of the courts to compel engagement in ADR. Whilst a single exercise of judicial discretion does not create a general rule, the decision to compel the drafting firm to attend mediation before the claim had been tried may be of practical assistance, especially when requesting engagement of will drafters in ADR.

Judicial caution in non-party costs orders

Although the drafting company’s conduct was criticised, HHJ Paul Matthews declined to exercise the discretion to join it as a non-party for costs purposes prematurely. The judgment illustrates the courts’ increasingly nuanced approach to non-party costs orders in probate and professional negligence disputes.

This decision reflects a judicial reluctance to impose non-party costs orders where liability is still contested, and where the factual and legal foundations of the claim have not yet been established. It stands in contrast to cases such as Pead v Prostate Cancer UK, where a will writer was ordered to contribute to costs despite not being the sole cause of the dispute, and Marley v Rawlings, where the solicitor’s insurers accepted liability following a drafting error.

The judgment reinforces that non-party costs orders are exceptional and must be supported by a clear and proximate connection to the litigation. Where negligence is alleged but not yet proven, courts are likely to defer such decisions until the underlying claims are resolved.

The dangers of unregulated will-drafting services

Judge Matthew’s determination also reflects a broader concern: unregulated providers often lack the legal knowledge and expertise required to comply with the formalities of the Wills Act 1837 and the principles in Banks v Goodfellow. These safeguards, including testamentary capacity, freedom from undue influence, and proper witnessing, are not mere technicalities. They are essential protection for individuals and their families.

Practical takeaways

This case offers several key lessons:

Unregulated will-writing services can result in ambiguous, poorly executed documents that lead to costly and damaging litigation. Advice from qualified solicitors can ensure compliance with the Wills Act 1837 and the principles in Banks v Goodfellow.
Protective negligence proceedings against drafting firms may be necessary where poor advice or execution is suspected.
Consolidation of probate and negligence claims may be appropriate where factual overlap exists, as ordered in this case.
Courts may compel drafting firms to attend mediation, even before liability is determined, reflecting a pragmatic approach to ADR.
Non-party costs orders are exceptional and will not be granted prematurely; courts require a clear and proximate connection to the litigation.

Conclusion

Ivey & Ors v Lythgoe & Anor serves as a stark reminder of the risks posed by unregulated will drafting. Poor execution and inadequate legal advice can lead to costly, emotionally charged disputes and complex litigation. The judgment highlights the courts’ pragmatic support for ADR, the procedural caution around non-party costs orders, and the importance of compliance with the Wills Act 1837 and Banks v Goodfellow.

Engaging qualified practitioners and ensuring proper execution are not just best practice, they are essential safeguards against future conflict.

If you have any questions in relation to the issues raised above, please contact the Burges Salmon team. This article was written by Justin Briggs with the assistance of Will Cadbury.