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Disputed wills: Guidance for practitioners

11 December 2018

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 good practice on this issue was taken into account by the Court of Appeal in Larke v Nugus (1979) 123 SJ 337 (later reported in (2000) WTLR 1033) in relation to the issue of costs in a probate action. 

This practice note explains that advice and provides supplementary information on disclosing such information and the consequences of failing to do so. This practice note also addresses the risks associated with acting in a dispute, and protecting the estate pending the resolution of the dispute.

Legal status

This practice note is the Law Society's view of good practice in this area. It is not legal advice.

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies such as the Solicitors Regulation Authority (SRA) for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

Professional conduct

The following section of the SRA Code is relevant to this issue:

Chapter 4 on Confidentiality and disclosure

SRA Principles

There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

The principles apply to solicitors or managers of authorised bodies who are practising in England and Wales or from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside England and Wales.

Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should - Outside of a regulatory context, good practice for most situations in the Law Society's view. In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code - SRA Code of Conduct 2011

SRA - Solicitors Regulation Authority

Testator - The person who made the will

Executor - A person named in a will who is responsible for carrying out its terms

Administrator - A person appointed by the court to carry out the administration and distribution of a deceased person's estate

Personal representative - The executor or administrator of a deceased person

Beneficiary - The person/s named in the will

Fiduciary - The person entrusted with property or power on behalf of the beneficiary

Witness summons (formerly subpoena) - A document issued by the court requiring a witness to attend court or produce documents to the court

Grant ad colligenda bona defuncti - The application for a temporary grant from the Probate Registry to deal with the assets of a deceased estate

The Law Society also provides a full glossary of other terms used throughout this practice note

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