1.1 Who should read this practice note?
Solicitors dealing with wills and probate.
1.2 What is the issue?
If a will you have prepared is disputed you may be asked to disclose information about the circumstances surrounding its preparation and execution.
Law Society advice on this issue was affirmed by the Court of Appeal in Larke v Nugus SW vol123 (1979) CA p337 and later reported in (2000) WTLR 1033. This practice note highlights that advice and provides supplementary information on disclosing such information, the consequences of failing to do so, and protecting the estate.
2 Circumstances in which you should disclose the contents of a will
Under the SRA Code, Chapter 4 on Confidentiality and disclosure, your duty of confidentiality continues after the end of the retainer. When the client dies, the right to confidentiality passes to the personal representatives; an administrator's authority does not begin until the court grants letters of administration.
2.1 Legal background
The question of confidentiality in relation to a disputed will was considered in Larke v Nugus . At that time the Law Society's advice on disputed wills was:
'If the testator is dead, the solicitor must not disclose any information before probate is granted, except to the executors, without the consent of the executors. But this will not necessarily apply where a solicitor is asked to disclose information about a will which he has prepared and which is in dispute.
Privilege cannot be claimed by one person claiming under a deceased testator's will as against another person having a similar claim in respect of matters communicated by the deceased to the solicitor during the lifetime of the deceased. The testator's solicitor could be compelled by the court under subpoena to answer questions directed to eliciting communications made to him by the testator in the course of preparing the will if put to him or her by either party.
Where a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat and the solicitor's knowledge makes him or her a material witness, then the solicitor should make available a statement of his evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will, whether or not the solicitor acted for those who were propounding the will.'
This advice was confirmed and upheld in the case by the Court of Appeal (Civil Division) in Larke v Nugus
The Court of Appeal made it clear that the information required related to both:
- the circumstances in which the testator gave instructions for the will
- the circumstances in which the will was executed
2.2 Senior Courts Act 1981
If you have prepared a will you have knowledge that makes you a material witness if the will is disputed. The court has power under the Senior Courts Act 1981, s122, to order persons with knowledge of any document that is or purports to be a testamentary document to attend court and answer questions relating to the document.
You should therefore provide the information in advance to try to limit the costs of a full hearing.
2.3 Civil Procedure Rules
The court has power under Rule 31.16 of the Civil Procedure Rules to order pre-action disclosure of documents in order to either:
- dispose fairly of the anticipated proceedings; or
- assist the dispute to be resolved without proceedings; or save costs
You should make available any documents in your possession that are relevant to the proceedings to avoid the cost of unnecessary applications to court. Providing this information promptly when a will is initially challenged may dispel suspicions and save costs in the long run.
You should make a full attendance note at the time the will is prepared. You should also preserve the file. See Law Society Practice Note on Retention of Files.
3 Good practice on receipt of a request for information
3.1 Where there is no suggestion of negligence
The following applies where a will you have prepared is in dispute, but there is no suggestion of professional negligence.
When requested, in what is known as a 'Larke v Nugus letter', you should provide a full statement of evidence as to the preparation of the will, and the circumstances in which it was executed to anyone who has an interest in the dispute, whether or not you are acting for any of the parties:
You should also, with the consent of any third party personal representatives, make available a copy of requested documents.
The quickest and easiest way of complying with such requests will often be to copy the contents of the will file.
As a potential witness in proceedings, you may not charge for time spent compiling the statement or documents however a reasonable charge may be made for photocopying.
3.2 Where there is a possibility of negligence
You should take the following steps where there is a possibility of negligence in the preparation of the will:
- 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, and
- immediately inform your practice's insurers of the existence of a potential claim
4 Consequences of failure to provide full information
In Larke v Nugus, the Court of Appeal refused to order those challenging the will to pay the costs of the challenge even though the will was found to be valid. This was because the solicitor who had prepared the will refused to make information available at an early stage which, had it been given, could have prevented a full trial. The claimants' costs, therefore, were ordered to be paid from the estate and reduced the amount available for the beneficiaries of the valid will.
The beneficiaries of an estate that has been reduced in this way would be justified in bringing an action against the solicitor who had failed to disclose the information at an early stage to recover the lost costs.
As the purpose of a Larke v Nugus letter is to prevent money being spent on futile litigation by the provision of early pre-action disclosure, the onus is on you to provide a prompt reply and relevant evidence to facilitate early settlement.
Providing a response shortly before trial, when most of the costs have been incurred, is unlikely to protect you from an adverse costs order. You should therefore provide a full response to a request 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.
5 Risks of acting in disputes
You may find yourself in a difficult position, if a will you prepared is disputed, particularly if the will appoints you as executor. You may feel strongly that the will is valid and that those disputing it are misguided but you should consider your position carefully.
5.1 Risk of incurring costs
As an executor you are a fiduciary with duties to the beneficiaries of the estate, whoever they turn out to be. If you are partisan in the litigation, you risk a costs order being made against you personally. Provided you act neutrally in any litigation the costs of the executor should come out of the estate. So far as the warring parties are concerned, it is no longer the case that costs in probate litigation will necessarily be ordered from the estate. Costs are at the discretion of the court, and it is increasingly the case that the unsuccessful party will have to bear them.
To avoid being at risk of costs you should therefore remain neutral and allow the beneficiaries of the will or next of kin to pursue the litigation. Your only obligation in the proceedings is to provide information and to preserve the estate.
5.2 Conducting litigation on behalf of the beneficiary
There may sometimes be circumstances in which it is difficult for the beneficiaries to conduct the litigation and you, as executor, may wish to do so on their behalf. If so you should:
- be clear that you are making yourself a party to the litigation with all the risks of adverse costs orders being made against you
- protect yourself where possible by taking out an indemnity for costs from adult beneficiaries
The safest course of action is for you to suggest to the beneficiaries that they seek separate advice.
6 Protecting the estate pending resolution of the dispute
6.1 Application for temporary grant
Irrespective of whether or not a particular will is valid, steps should be taken in relation to the assets and liabilities of an estate. These can include the duty of the executors to ensure that assets must be secured and liabilities paid. However, the identity of the true executors may be uncertain if the will is in dispute. In these circumstances, the parties to the dispute, and those advising them, should consider at an early stage how best to protect the estate.
Where it is possible, after the agreement of the parties to the dispute, you or another agreed party, usually a professional, should apply to the Probate Registry for a temporary grant, or grant ad colligenda bona defuncti, to deal with the assets and protect them until a full grant can be obtained.
6.2 Agreement regarding steps in the administration
Where an executor or administrator has already taken a grant, you should agree with the parties to the litigation what steps will be taken in the administration. It is easy for an executor who is involved in a dispute to overlook simple steps such as cashing in premium bonds after they cease to be eligible for prizes or investing cash in high interest accounts.
7 More information
7.1 Legal and other requirements
- Senior Courts Act 1981, s 122
- Civil Procedure Rules, Rule 31.16
7.2 Further products and support
Law Society Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09.00 to 17.00 on weekdays.
7.2.2 Professional Ethics Helpline
Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues.
7.2.3 Practice notes
7.2.4 Law Society products and publications
7.2.5 Training and events
7.2.6 Association of Contentious Trust and Probate Practitioners
The Association provides resources for solicitors, barristers and legal executives working in this area, including a letter template for requesting information from solicitors about the preparation of wills.
Visit the ACTAPS website.
The Law Society thanks the Wills and Equity Committee for their assistance with this practice note.