Factual and Procedural Background
The claim concerns a probate dispute seeking proof in solemn form of a will dated 29 May 2017 ("the Will") of the deceased, who passed away on 21 July 2017. The Plaintiff, a friend of the deceased and sole beneficiary under the Will, initiated the claim. The Defendants are the deceased's siblings, who would inherit under intestacy if the Will is invalid. The siblings had been estranged from the deceased for many years and had minimal contact shortly before his death.
The deceased suffered from bipolar disorder and was diagnosed with a brain tumour shortly before his death, spending his final weeks in hospital or hospice care. The Will was prepared by a close friend of the deceased, who purportedly followed the deceased's instructions and witnessed the signing alongside another friend. The Will bequeaths all the deceased's belongings and property, including a specified address, to the Plaintiff.
The Defendants challenge the Will's validity on three grounds: the authenticity of the deceased's signature, the deceased's testamentary capacity, and whether the deceased knew and approved the Will's contents. The Defendants have been granted permission to obtain expert handwriting and psychiatric evidence on these issues.
The Defendants sought non-party disclosure from the two witnesses to the Will regarding documents relevant to the preparation and execution of the Will, including communications, drafts, and documents bearing the deceased's signature. The parties failed to agree on a disclosure list, and the court considered the Defendants' application for disclosure pursuant to CPR 31.17 and the disclosure pilot.
The claim was issued in June 2019, with directions made in December 2019 regarding disclosure issues and expert report exchange. The Defendants' application for disclosure arose amid delays and disagreements over disclosure scope and timing.
Legal Issues Presented
- Whether the deceased signed the Will.
- Whether the deceased had testamentary capacity at the time of giving instructions for and executing the Will.
- Whether the deceased knew and approved the contents of the Will.
- Whether non-party disclosure should be ordered against the Will's witnesses before primary disclosure by the parties.
- Whether the application for non-party disclosure is premature in light of pending expert reports and undisputed disclosure procedures.
Arguments of the Parties
Defendants' Arguments
- The documents sought are likely to support the Defendants' case or undermine the Plaintiff's case, satisfying the relevance requirement under CPR 31.17.
- Disclosure is necessary to dispose fairly of the claim and save costs, especially given the Defendants' lack of direct knowledge of relevant events.
- Probate proceedings are quasi-inquisitorial, requiring all reasonably available evidence to determine the Will's validity.
- The circumstances surrounding the Will’s preparation and execution are suspicious, including the deceased’s severe mental illness, timing of the Will’s drafting, and subsequent denial of the Will’s existence by involved parties.
- Disclosure should include communications between the respondents and the Plaintiff, drafts and instructions for the Will, tenancy agreement drafts, correspondence concerning testamentary wishes, and documents bearing the deceased’s signature.
Respondents' Arguments
- The application is premature as the parties have not agreed on the list of disclosure issues or models, which are essential to focus the disclosure narrowly on live issues.
- Ordering disclosure now risks unfairness by requiring respondents to produce documents when the Defendants’ expert reports, particularly on handwriting, are not yet exchanged and may not support the Defendants' case.
- The requested documents, especially communications between respondents and Plaintiff, are irrelevant or constitute a fishing expedition.
- The Defendants do not allege conspiracy or forgery, so documents supporting such allegations are not relevant unless pleaded.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re Howglen [2001] 1 All ER 376 |
Requirement that documents sought from non-parties be likely to support the applicant's case or adversely affect another party's case. |
Used to emphasize the threshold for non-party disclosure and caution in exercising such jurisdiction. |
| Frankson v Home Office [2003] EWCA Civ 655; [2003] 1 WLR 1952 |
Non-party disclosure is exceptional and the court must exercise this jurisdiction with caution. |
Reinforced the exceptional nature of non-party disclosure and the need for careful judicial discretion. |
| Three Rivers DC v. Bank of England (No. 4) [2003] 1 WLR 210 |
Interpretation of "likely to" in disclosure; documents must "may well" support or adversely affect a party's case. |
Guided the court in applying the relevance threshold to individual documents and classes of documents. |
| Abbas v Yousuf [2014] EWHC 662 (QB) |
"Case" means pleaded case; relevance must be assessed strictly by the pleadings. |
Directed the court to focus narrowly on pleaded issues when determining relevance of disclosure. |
| Flood v Times Newspapers [2009] EWHC 411 (QB); [2009] EMLR 18 |
Disclosure must be focused narrowly on live issues as defined in the pleadings. |
Supported the court’s approach to limit disclosure to documents relevant to pleaded issues. |
| Larke v Nugus (1979) 123 SJ 337; [2000] WTLR 1033 |
Guidance on full and frank disclosure by those involved in preparing a will to avoid costly litigation. |
Referenced as best practice guidance in the context of testamentary disputes, supporting the need for disclosure. |
| Bukenham v Dickinson [2000] WTLR 1083 |
Extension of Larke v Nugus guidance to solicitors preparing wills who are not executors. |
Supported the application of best practice disclosure beyond executors to other involved parties. |
| Re Catling [2014] EWHC 180 (Ch) |
Larke v Nugus guidance is best practice, not confined to solicitors. |
Confirmed the broad applicability of disclosure best practice in probate matters. |
Court's Reasoning and Analysis
The court first identified the core legal issues: whether the deceased signed the Will, had testamentary capacity, and knew and approved its contents. The court emphasized that the relevance test under CPR 31.17 requires documents sought to be likely to support the Defendants' case or undermine the Plaintiff's case, assessed strictly by reference to the pleaded case.
The court rejected the Defendants' argument that the circumstances of the Will's execution arouse suspicion, noting that such an allegation was not pleaded and thus documents relevant to it do not satisfy the relevance test.
Regarding documents evidencing the deceased's signature, the court held these are relevant and disclosable, as the issue is to be determined by the judge considering all evidence, not just expert reports. The court declined the respondents' submission that disclosure should await expert reports, finding that the timing of the application was appropriate given that signature samples are relevant to multiple issues and expert reports are only one part of the evidence.
The court acknowledged the respondents' concerns about prematurity but concluded that the issues are straightforward and the disclosure sought is necessary for the fair disposal of the claim. The court distinguished between non-party disclosure and primary disclosure by parties, emphasizing that these are separate and to be considered independently.
The court analyzed each category of documents sought, applying the tests of relevance, necessity, and discretion. It found that communications between the respondents and between them and the Plaintiff during the relevant period are likely to contain relevant evidence about testamentary intentions and capacity and should be disclosed, excluding call logs as irrelevant.
Drafts and instructions for the Will were accepted as disclosable by the respondents. Drafts of the tenancy agreement were ordered disclosed despite no pleaded suspicious circumstances, as they relate to the deceased’s capacity and knowledge.
The court limited disclosure of correspondence concerning testamentary wishes to the period from 1 September 2016 to 21 July 2017, as earlier documents have negligible probative value. It declined to order disclosure of documents predating this period, finding the burden disproportionate to their slight relevance.
Documents bearing the deceased's signature from 1 January 2017 were ordered disclosed, with the court rejecting the need for expert evidence to justify their production. The court noted the burden is not onerous and that privacy concerns can be managed by restricting access to experts and redacting irrelevant content.
Holding and Implications
The court GRANTED the Defendants' application for non-party disclosure against the respondents, ordering them to disclose documents within specified categories relevant to the issues of signature authenticity, testamentary capacity, and knowledge and approval of the Will.
The disclosure ordered is limited in scope and period to ensure relevance and proportionality. The decision facilitates the court’s quasi-inquisitorial function in probate claims, ensuring all reasonably available evidence is before the court for a fair determination of the Will’s validity.
No broader precedent was established beyond the application of existing principles governing non-party disclosure in probate claims under CPR 31.17 and related case law. The decision primarily affects the parties by compelling disclosure necessary for the resolution of the claim.