Law Society Guidance on Disputed Wills

There is a widespread recognition and understanding that solicitors have a duty of confidentiality. What many people may not appreciate is that the duty of confidentiality to a client continues even after the client has died. In that case the right to confidentiality passes to the personal representatives.

However, there is an exception to this rule which allows a solicitor to disclose what would otherwise be confidential information where a serious dispute arises as to the validity of a will and a solicitor's knowledge could potentially make him/her a witness. Where such a dispute is being considered the solicitor can be required to make provide information regarding how the will came to be made.

On 16 April 2009 the Law Society issued a practice note for all solicitors who deal with wills and probate to help clarify their obligations in this situation.

The note recognises that the logic behind allowing disclosure in this case is because where a person had knowledge that makes them a material witness, the court can order that person to attend court and answer questions relating to those matters. The intention therefore is to provide the information in advance to try to limit the costs incurred in a dispute. Providing information promptly when a will is initially challenged can also dispel suspicions and diffuse a potential dispute before it becomes even more acrimonious.

Solicitors should already be routinely making a full attendance note at the time a will is prepared, and they should also keep the file safe.

The new guidance states that were there is a dispute in connection with a will and a request for disclosure is received from a person who has a genuine interest in the dispute, the solicitor should provide:-

• a full statement of evidence as to the preparation and the circumstances in which the Will is executed; and
• a copy of the requested documents.

The solicitor has a responsibility to provide a prompt reply and to provide relevant copy documents, and if he does not do so he/she risks being ordered to pay the costs that the parties incur unnecessarily pursuing the matter through the courts. The guidance recommends production of the response to the request within 2 - 3 weeks, or "so long as it is necessary" to retrieve and consider the file, copy necessary parts of it and provide the statement.

The guidance note also strongly recommends that solicitors should remain neutral in a dispute about a will where the will appoints the solicitor as executor even if he or she feels the challenge to it is misguided. In some cases the solicitor may wish to conduct the litigation on behalf of the beneficiaries. In that case though the solicitor becomes a party to the litigation with the risk of a costs order being made against him or her.

Whether or not a will is valid, steps should always be taken in relation to the preservation of the assets and minimising the liabilities of an estate as this is clearly necessary to protect the interests of the beneficiaries. Unfortunately, if a will is in dispute the identity of the lawful executor will often be uncertain. In this case the note recommend that the parties apply for a temporary grant of probate to deal with the assets and protect them until a full grant can be obtained once the dispute regarding the validity of the will has been resolved.

In conclusion, therefore, if there is a real question about the validity of a will, a beneficiary is able to point to this guidance note to make a formal request to the solicitor who prepared the will, to:-

• provide a full statement setting out the circumstances in which
• the instructions to make the will;

• the execution of the will was undertaken; and

• provide copies of all relevant documents (usually the will file).

The only cost to the enquirer in making that request will be the solicitor's photocopying charges. If the solicitor either refuses to do so, or subsequently takes on a partisan role by preferring one of the parties over the other, they risk the court making a costs order against them.

This guidance note will also act as an effective reminder to solicitors involved in preparing wills, and also to solicitor executors in responding to claims where a will is challenged, to be very careful to ensure they comply with their duties to the Law Society and to the court, and to remain neutral in the event of any dispute.

Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.