Unregulated Will Drafting – A Warning in The Case of Ivey v Lythgoe

The making of a will is one of the most important decisions you will undertake. The second most important decision will be who prepares your will.

A will does not need to be prepared by a solicitor to be valid but a recent case has highlighted the risks of having unregulated will drafters undertake this important task.

Ivey v Lythoe (2026)

George Ivey had three sons – Russell, Gerald and David. Russell died leaving 4 children – Paul, Treve, Christopher and Geraldine (who were the Claimants in the case). Gerald and David died without leaving any children. Geroge also had two nieces – Susan Marie Lythgoe, and Nolen (who also died without leaving any children).

The matter concerned the estate of David who was survived by his nephews and niece, as well as first cousin.

There were two wills made by David – one in 1994 and one in 2009. The first will was prepared by a company called PEP Consultancy Limited. The second by another company called Trust Inheritance Limited.

Susan (who was named as a beneficiary under the 2009 will) obtained a grant on 23 November 2023. The Second defendant was named as a beneficiary under the 1994 will but not the 2009 will.

The Claimants issued a claim on 20 May 2024 to revoke the letters of administration or to rectify one or the other of the two wills.

They had also issued a professional negligence claim against Trust Inheritance Limited in June 2024 (although had not served the claim).

An application was made on 23 July 2025 for various orders in respect of the will writing company who were not party to the underlying probate claim, including that they be joined as a costs-only party.

HHJ Paul Matthews decided the application giving judgment on 12 September 2025.

The Decision

The judge agreed to

• Consolidate the two sets of proceedings
• Allow the Claimants to file and serve particulars of claim in the negligence proceedings
• Stay the proceedings pending a mediation scheduled for October 2025 to allow the respondent will drafting company to attend and participate

Compulsory mediation is not a new thing, but courts can only order parties to the proceedings to participate.

The court however has power to make a costs order against a non-party, under section 51(3) of the Senior Courts Act 1981.

There are many examples of will writers being joined as a cost-only party but the difference in this case was that Trust Inheritance Limited had not accepted liability for negligence or agreed for a cost-only order to be made against them.

The court held that as the “two sets of proceedings arise from the same set of facts and consolidation would enable [the respondent] to engage with the proceedings substantively.” Accordingly, in my judgment the right order to make is not one for the joinder of the respondent to the probate/rectification for costs purposes only. It is one for the consolidation of the two sets of proceedings.

The interplay with professional negligence

If a will has been incorrectly prepared or executed, this can have very costly implications. If there is a loss due to the negligence of the will drafter then you may have a claim against them.

Whilst there is option to add them to the contentious probate proceedings under section 51 of the Senior Courts Act 1981, as illustrated in this case, courts are reluctant to exercise their discretion as these orders are exceptional.

“The critical factor in each case is the nature and degree of his connection to the proceedings” (Deustsche Bank AG v Sebastian Holdings Inc (2016))

Such orders were made in Marley v Rawlings (Costs) (2014), Pead v Prostate Cancer UK (2023) and Leonard v Leonard (Costs) (2024)

In order to be successful in bringing the will drafter on board and liable for any associated costs, it is important to put them on notice as soon as possible. You will need to consider:

• Issuing a professional negligence claim
• Joining them to the contentious probate claim
• Joining the two sets of proceedings
• Involving them in any ADR/mediation

Final Words

Will drafters do not have to be solicitors so are not regulated and therefore not compelled to have compulsory indemnity insurance. This is the major drawback of getting a will done by an unregulated will drafter as it is a great safety net to have indemnity insurers picking up any costs resulting from a badly drafted will.

Whilst AI is making it much more user friendly to draft your own will even, this should be cautioned against without proper legal advice from a qualified and insured professional.

If you are concerned about the validity of a will or need advice on preparing one safely, our specialist contentious probate and private client teams can help. Speak to a qualified, regulated professional to ensure your wishes and your loved ones are protected. Contact our legal experts on 0330 822 3451 to discuss your situation.