Disputed Wills: guidance for practitioners

What should you do if a will you prepared is disputed after your client has died? The Law Society has published useful guidance for practitioners in the case of a disputed will.

If a will you prepared is disputed, you may have to disclose information about the circumstances surrounding its preparation and execution. This Practice Note, aimed at all wills and probate solicitors, sets out the Law Society’s advice on good practice, as well as supplementary information on disclosing such information - and the consequences of failing to do so.

Confidentiality and privilege

The PN reminds practitioners that their duty of confidentiality continues after the end of the retainer and, on the client’s death, that right to confidentiality passes to the testator’s PRs. It makes clear that disclosure of a will’s contents on the death of a client without consent from the PRs “is listed as an indicative behaviour that you have not complied with the SRA Principles in relation to confidentiality and disclosure”. The PN therefore explains the extent of the PRs’ duty of confidentiality.

As for privilege, the guidance explains the extent to which privilege applies to communications between you and your testator client. This means you cannot properly disclose those communications without authority to do so, for instance, from their PR, or a court order or under some statutory or other authority. If you are a named executor, you may own the privilege and can waive it, but if you share privilege with another individual – it becomes more complicated.

The note also considers the Court of Appeal ruling in Larke v Nugus (2000); issues of good practice if you receive a request for information by way of a 'Larke v Nugus letter', and the potential consequences of not complying with such a request.

The PN also considers further risks associated with being involved in a disputed will, eg. the costs risks, and how to protect the estate pending its resolution. Practitioners are recommended to read the PN in full here.

 

 

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