Stephen Lawson, Richard Dew and Henrietta Mason explain the recent changes to the Law Society’s disputed wills practice note
The Law Society has recently amended their disputed wills practice note (PN). The Law Society produces many practice notes, covering a wide range of subjects, but this one is consistently one of the most frequently viewed – and quoted in Larke v Nugus letters.
The PN has a symbiotic and circular relationship with Larke v Nugus. An earlier version of the PN was quoted by the Court of Appeal in the Larke v Nugus judgment (123 Sol Jo 337). Likewise, the PN makes reference to the judgment. The Larke v Nugus principles are, at first sight, well known to private client lawyers and contentious probate litigators: “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 them a material witness, then the solicitor should make available a statement of their 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.”
There have been many changes to law and practice since Larke v Nugus was decided by the Court of Appeal in 1979. It will be appreciated that in 1977, when the trial was heard, it was not common to produce written witness statements for trial in advance of a trial – witnesses gave evidence in chief. Second, the rules of professional conduct have been changed on various occasions (the Association of Contentious Trust and Probate Specialists (ACTAPS) precedent letter still refers to the long-defunct Law Society’s Guide to Professional Conduct of Solicitors 7th edition). The ACTAPS precedent also still refers to the Law Society PN “of the 6 October 2011”.
This leads to the next point. There have been numerous versions of the PN; it has been amended on various occasions since the ACTAPS edition was produced, including in 2018, 2019 and now the latest version in 2022. So what has changed?
The PN historically confirmed that disclosure of the contents of a will and of the instructions regarding that will on the death of a client without consent from the personal representative (or representatives, if more than one) could be a breach of confidentiality and of privilege. The PN makes is clear that authority to disclose may come from:
- the testator client while still alive
- their personal representative
- the persons who are together all entitled to the estate (whichever will is valid) – that is to say, the beneficiaries
- an order of the court, or
- some other statutory authority.
The third bullet point above is a new addition to the 2022 PN by way of clarification.
The latest version of the PN emphasises the obvious position that where there is a dispute about the validity of a will then there may also be a dispute about who the personal representatives are (it could be the case that although a new, and disputed, will has been prepared and the beneficiaries have changed, the personal representative may be the same in all relevant wills). If, however, there is a dispute as to the validity of a will and there is a different executor in an earlier will, it may be appropriate to obtain the consent of all the persons who might be entitled to the estate whatever the outcome of the dispute – or to obtain the consent of all the relevant potential executors.
Law Society practice notes have always warned solicitors about the obligation of privilege – legal advice privilege whereby legal advice given to a testator should not be waived without the consent of the person to whom that privilege belongs (usually the executor).
A solicitor’s file note will necessarily include privileged advice. Solicitors must take care not to disclose this inadvertently without the consent of the person to whom the privilege belongs. For example, a solicitor’s file note could reflect the advice that was given to the effect that “I have no doubt about your capacity to make a will but if you exclude this particular beneficiary then I fear that this beneficiary would be likely to make a claim for reasonable provision under the Inheritance (Provision for Family & Dependants) Act 1975 and that such a claim would, on the facts as known at present, be likely to have a strong prospect of success”. Advice like this reflected in a file note could almost be an invitation to a disappointed beneficiary to make a claim – not just about the validity of the will but it could lead to an alternative or second claim for provision under the 1975 act.
The answer to whether this information can be disclosed is always consent. A solicitor must take care not to inadvertently – and perhaps with good intentions – disclose information of this kind without consent.
Copy the whole contents of the will file
Larke v Nugus was decided many years before the introduction of the General Data Protection Regulation (GDPR). The GDPR gives dual rights both as to an expectation of confidentiality and, in some circumstances, a right of inspection of data. The previous statement of practice that the quickest and easiest way of complying with Larke v Nugus requests would often be to copy the contents of the will file could now lead to breaches of the GDPR position. The PN has therefore been updated to take account of this.
Under the GDPR, personal data means information relating to an identified or identifiable natural person. Special category data includes any personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership and data concerning health or a natural person’s sex life or sexual orientation. It is quite foreseeable that a will instruction file could contain personal data about beneficiaries – and some of this data may be special category data (for example, “I want to leave a share of my estate to my son on trust – rather than to him absolutely – because he is an alcoholic” or “I don’t want to make a bequest to my daughter because I don’t agree with her sexual orientation”).
Personal data can only be shared with others if there is a lawful bases to do so. Lawful basis could include legitimate interest, consent or legal obligation. The safest course in the absence of a court order would be to obtain the consent of the person whose data it is. Where the data is special category data then consent of the data subject will be required. If therefore there is a request to make disclosure of a will file that includes personal data of another living person and you do not have the consent of that person, then the solicitor will-preparer should consider providing the file but with the personal data redacted.
The converse position is also true. A disappointed beneficiary may make a subject access request (SAR). In such circumstances the request is confined to data – and not necessarily “documents”. There are a number of exemptions in the GDPR which apply to compliance with SARs, including legal professional privilege. Again, a will-preparer may need to consider redaction of data.
These provisions are new. We foresee that it is much more likely that a will-preparer will need to spend time going through will-preparation files line by line and redacting information that a person making a request is not entitled to see. This will obviously add to the cost of disclosure and we foresee that these competing obligations will ultimately need to be tested by a court.
To supplement the PN, a new decision tree has been provided – so that practitioners can ask themselves, and then answer, a series of questions to help determine whether they have authority to disclose information, and to determine what information can be produced. We hope that this new decision tree will prove to be helpful to practitioners.
The 2018 practice note reflected that the SRA Code of Conduct does not prohibit charging for the preparation of a Larke v Nugus statement. We agree with that statement. However, it does have the potential to cause conflict and complaints.
The first point to make is that there is no obligation to charge costs. The second point is that there is no current guidance as to who should pay any costs – for example whether the costs should be paid by a client, the person making the request or the estate. This issue remains unresolved.
Another issue which is of fundamental importance is that costs should be reasonable to reflect the amount of work being undertaken. It may be helpful to try to agree the amount of costs in advance. It has come to our knowledge that some will-preparers are on the face of it seeking to charge unreasonable fees for the disclosure of a file. For the reasons set out in this article, it is likely that will-preparers will, in future, need to spend more time considering the contents of the file almost on a line-by-line basis prior to disclosure – with time being spent to redact some information.
This process is likely, unfortunately, to increase the amount of work – and hence costs – required to be undertaken before a file is copied and disclosed. It will obviously be sensible practice for the will-preparer to keep a copy of the file as disclosed so it can be clear what information (if any) has been redacted.
There is no doubt that the ACTAPS precedent is the most widely used version of a Larke v Nugus request. It is however worthwhile repeating that the ACTAPS precedent does not particularise a serious dispute – it does not need to particularise a serious dispute because the ACTAPS precedent is designed to have been signed both by a disappointed beneficiary and by executors. In practice, the ACTAPS precedent tends to be adapted so it is only sent by a disappointed beneficiary without reference to executors. It is undoubtedly the view of these authors that if a letter is adapted in this way, then the nature of a serious dispute should be particularised. This aspect is frequently missing from the Larke v Nugus letters that we come across in practice.
It is not the objective of the Wills & Equity Committee or the authors to seek to change the law – only a court can do that. We do however reflect that there is not a uniform view on the whole process amongst stakeholders. Some stakeholders, for example, hold the view that a Larke v Nugus request only applies where the will-preparer is also the executor – this is, of course, the situation that arose in Larke v Nugus. There is likely to be a wide range of opinions about the detail that is required to be particularised to evidence a serious dispute (does it, for example, require the sending of a formal letter of claim?). There is also likely to be a range of opinion with regard to the extent of information that may be redacted from a solicitor’s file and the charges that it is permissible to make for considering a file in detail before it is copied. We look forward to clarification from the courts in due course.