Wright Hassall LLP, together with Charlotte John of Gatehouse Chambers, represented the successful claimant in a long-running dispute concerning the estate of Yeamon Keith Care.
The substantive judgment (Ellis v Ellis & Ors [2024] EWHC 3416 (Ch)) handed down earlier this year, and the costs judgment handed down yesterday (Ellis v Ellis & Ors Re Care (Deceased) [2025] EWHC 2609 (Ch)), are now available on the National Archives website.
The dispute centred on Tregear Farm in Cornwall, farmed by successive generations of the Care family. Keith Care, a notable figure in rare breed circles, maintained a Dairy Shorthorn herd (one of only two pure pedigree herds in the world) of sufficient interest that cattle were purchased for the Prince of Wales’s Highgrove estate. Despite severe scoliosis leaving him unable to sleep in a bed and almost bent double by the end of his life, Keith continued farming with support from local farmers, charities and rare breed enthusiasts, including the claimant, Luke Ellis, to whom he left his share of Tregear Farm.
The issues:
Keith’s brother, Vivian Care, challenged the will on three grounds:
- Due execution;
- Testamentary capacity;
- Knowledge and approval.
Alternatively, Vivian claimed to be entitled to Keith’s share of the farm on the grounds of proprietary estoppel.
The judgment:
HHJ Michael Berkley, sitting as a High Court judge, found for the claimant. The judgment is noteworthy for its careful assessment of the witnesses and the realities of farming life and is a vivid reminder that the law of wills is as much about the realities of human relationships as it is about legal doctrine:
Execution:
The will was properly executed having been witnessed by Keith’s GP, Dr Fairlie, a ‘veteran witnesser of wills’ and Mr Clarke, a volunteer from the Farm Community Network who had driven Keith to the surgery. The presumption of due execution was not displaced by the GP’s lack of recollection of the presence of the second witness in what would have been a fleeting meeting.
Capacity:
The judge rejected the argument that Keith’s devotion to his animals amounted to a personality disorder depriving him of testamentary capacity. The evidence showed a man who was intellectually engaged and socially connected. The judge observed that ‘many farmers never give up until it is impossible to continue’, and that Keith’s approach to his animals as ‘cautious and caring’, not obsessive. Keith had logical grounds for coming to the conclusion that he did not wish to entrust the future of his animals to his family and that they did not in general deserve his bounty in circumstances where there was almost no evidence of any sort of ongoing relationship or closeness between Keith and Vivian and his sons.
Knowledge and approval:
No suspicious circumstances were found. The will was professionally drafted, reviewed by Keith at a meeting with his proposed executors and Mr Clarke, and the court was satisfied Keith knew and approved of its contents.
Proprietary estoppel:
Whilst there was an expectation that Tregear would remain in the family, any statements made by Keith were based on his intention at that stage to leave his share of the farm to his family and did not amount to an assurance sufficient to found a proprietary estoppel. Vivian could not point convincingly to anything that amounted to detrimental reliance. The disappointment felt by the family was genuine, but did not give rise to any remedy.
Costs
The costs judgment is also of interest, traversing the Spiers v English exceptions as well as the application of Part 36. The key conclusions reached by the judge are as follows:
Probate exceptions rejected:
The court rejected the contention that Keith caused the litigation. The court also found that any period of reasonable investigation for the purposes of the second exception had expired prior to the issue of proceedings, in circumstances where the executors had given Vivian authority to obtain medical records and other documents to enable him to investigate the position – a point which underscores the importance of early voluntary disclosure in cases of this description.
Conduct and ADR:
Luke’s delay in agreeing to mediation was reasonable in circumstances where Vivian had refused voluntary disclosure. Luke’s failure to issue a pre-action letter made no difference to the trajectory of the litigation and did not justify any costs sanction.
Part 36 offer:
Luke’s January 2024 offer was valid and genuine (amounting in terms of value to around 14.6% of the estate); CPR 36.17 consequences would therefore apply, including indemnity costs from February 2024, interest at 5% above base, and a 10% uplift on costs.
Executors’ costs:
Vivian was also ordered to pay the executors’ costs to avoid unfairness to the successful claimant.
