Disclosure in Probate Actions

Given the increase in the number of contentious probate claims there is a renewed focused amongst practitioners on steps that can be taken to protect themselves against a challenge to the validity of Will which they have prepared. This raises a question in relation to how requests for information from potential claimants should be dealt with and in particular what level of disclosure should be made and at what stage.

Within this jurisdiction the judgement of Mr Justice Kearns in the case of Elliott v Stamp [2008] 3 I.R. 387, encouraged the pre-trial disclosure of all information that would lead a reasonable person to conclude that “the further maintenance of a claim can no longer be seen as reasonable”. Kearns J. went onto encourage those representing estates to avail of this type of pre-trial disclosure which he described as “the equivalent in Probate terms of a lodgement or tender made in a Personal Injuries Action.” Most importantly Kearns J. when addressing the costs implications of such an approach, stated that a plaintiff who elects nonetheless to maintain a claim subsequent to disclosure been made and loses the case should not recover the costs from an estate, and may even find themselves the subject to an Order of costs, unless they were justified in continuing their proceedings after such disclosure was made. Although the said judgment illustrated the protection that making make pre-trial disclosure may offer an estate, it appears that further guidance is required in relation to making what Kearns J. describes as a Probate lodgement or tender at an early stage, on foot of a request for disclosure of a Will file by a potential claimant.

The Law Society’s Guide to Professional Conduct of Solicitors simply states that a solicitor who drafted a Will which is the subject of a probate action in which that solicitor is not concerned, is at liberty, after commencement of the proceedings and subject to the consent of the personal representative, to supply a statement as to the surrounding circumstances to any interested party.

More detailed guidance on this issue can perhaps be derived from the system which operates in England and Wales. One of the first steps taken by a practitioner challenging a Will in that jurisdiction is the preparation of a Larke v Nugus letter which is sent to the solicitor who prepared the will in question. In the case of Larke v Nugus [2000] WTLR 1033 the Court of Appeal laid down obligations upon solicitors to provide full disclosure of their files including any evidence concerning the execution of the original Will and all other information and documentation which is relevant to the dispute.

A non exhaustive list of information requested within a standard Larke v Nugus would include:

• How long the Solicitor had known the deceased.
• Who introduced the Solicitor to the deceased.
• Contemporaneous notes of all meetings and telephone calls, including confirmation of where the meeting took place and who else was present at the meeting.
• How the instructions were expressed.
• What indication the deceased gave that they knew they were making a will.
• Whether the deceased exhibited any signs of confusion, loss of memory or ill health.
• Whether and to what extent earlier wills were discussed and what attempts were made to discuss departures from the deceased’s earlier will-making pattern; what reasons the testator gave for making any such departures.
• How the provisions of the will were explained to the deceased
• Who, apart from the attesting witnesses, were present at the execution of the will and where, when and how this took place.

The Law Society in England & Wales has issued a practice note (entitled ‘Disputed Wills’) setting out in detail the obligations incumbent on solicitors who receives a Larke v Nugus letter and also set out the penalties which could potentially be imposed on those who fail to act in accordance with the practice note. A failure by a solicitor to respond properly to a Larke v Nugus letter is not merely a breach of professional duty, but is also likely to lead to adverse costs consequences. This may include not only orders as to costs between the parties, but also a wasted costs order against the firm for failing to supply the information which has been sought.

The relevant Practice Note goes on to state that providing a response to a Larke v Nugus letter shortly before trial is unlikely to protect a recipient an adverse costs order. Instead a full response should be provided within a “reasonable period, for example: two to three weeks or as long as it is necessary to:

• retrieve the file
• consider the contents
• copy any necessary parts of the file
• provide the statement to the relevant parties

Although there is no specific pre-action protocol in England & Wales under the Civil Procedure Rules (CPR), for contentious probate claims, it is apparent that the ‘conduct of the parties’ in relation to the general Practice Direction – Pre-Action Conduct protocol will include the way in which a party dealt with Larke v Nugus disclosure requests.

Law Society guidance sets out that Larke v Nugus letters are borne out of a situation where “a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat”. “Serious dispute” is not defined, and it is down to the recipient of such a letter to determine whether they consider it to amount to a bona fide request.

Despite the duties imposed on practitioners by a Larke v Nugus letter it is clear that it also affords practitioners an opportunity to firmly rebut any attempt made by a claimant to shift the burden of proof to satisfy the court as to the validity of a Will onto those seeking to uphold the will and can be utilized to demonstrate a practitioner’s experience and specialist knowledge in this area.

A solicitor must also be conscious of their professional duty of confidentiality in respect of all matters concerning the solicitor/client relationship, which cannot be breached without the permission of the client or the direction of the Court. In the case of the Will file, the solicitor must maintain this duty after their client’s death and it transfers to the new client, the executor(s). Even when solicitors are bound by the duty of confidentiality, it appears that the best way of protecting an Estate’s assets from trivial claims is to disclose as much information as possible at an early stage before litigation arises, as to do so may defeat a later claim for costs.

Where the issue of negligence arises the solicitor who prepared the will need to carefully consider their involvement in advising the executors in relation to the disclosure of the will file and the merit of a claim arising out of that file. In order to avoid a conflict of interest the relevant Law Society practice note states that the recipient should endeavour to “inform any lay executors and beneficiaries of the will that they may wish to take independent advice as to whether or not the will was negligently drafted”.