By Rowan Morton
HHJ Matthews sitting as a High Court Judge gave Judgment yesterday following a costs application following a split trial liability only hearing, in what he described as tragic family litigation. https://www.bailii.org/ew/cases/EWHC/Ch/2025/1711.html
Sheila Wills had 9 children, six of whom survived her. At the time of her death in April 2020 one of her daughters, Bernadette Rogers, had provided her with 2.5 years of live in care. It seemed widely accepted among the siblings that their mother wanted ‘Bern’ to be financially compensated, and had voiced the same during her lifetime. On her death Bern transferred herself £100,000 from her mother’s bank accounts and sought another £35,000, calculated at £150 per day but had not agreed the figure with her siblings.
The executor of the estate, Bern’s brother; Andrew Wills, accused her of theft, and fraud, which resulted in a criminal trial, after which Bern was acquitted by a jury. Bernadette issued proceeding in May 2023 in the High Court to prove her entitlement to payment for the care provided. The liability only trial was heard over three days before HHJ Matthews in the Property Trusts and Probate list in Bristol during February 2025.
Judgment was handed down in June 2025, where Bern succeeded in proving the existence of a binding contract between her and her mother, for payment of a reasonable sum for the care service provided (the alternative claim in unjust enrichment was also found proved). After expenses, and the care claim there remained £226,000 for distribution. The Claimant’s approved costs budget for the liability trial was £84,085, and HHJ Matthews made an order against the Defendant for a payment on account of 90%. He found it highly unlikely that the Claimant would receive a nominal sum, and there were no admissible offers.
The Defendant had funded his defence of the care claim by use of estate funds, and he sought an indemnity from the estate for the Claimant’s costs order against him. These latter two matters were not before HHJ Matthews however the Judge made clear that the costs liability was that of the Defendant’s, and not of the estate. If there was a shortfall in available funds from the estate, then it would be the Defendant who would be personally liable for that shortfall from his own assets. HHJ Matthews further questioned whether the Defendant had obtained a Beddoe Order that would entitle him to fund his solicitor’s fees from the estate.
The role of a personal representative can be an onerous one, and those taking it on should be very alive to the personal risk they face in costs. A Beddoe application requires the personal representative to put forward all the relevant facts, and an advice on merits from Counsel. The beneficiaries should be consulted and their position included in the application. A Court will then approve, or otherwise, whether a personal representative is entitled to draw funds from the estate and whether he should be indemnified for any potential costs against him. This does not of course address HHJ Matthews’ warning about the shortfall.
Given that there had been an acknowledgement from the siblings that Bern should be entitled to something for her services, it seems incredible that there had been no offers made to her by Andrew on behalf of the estate that could have dissuaded a Judge from making the costs order that he did.
For the liability Judgment
https://www.bailii.org/ew/cases/EWHC/Ch/2025/1367.html
Rowan Morton has an established practice at the Chancery Bar, with a particular interest in TOLATA cases involving construction and accounting.
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