The Law Society has published an updated practice note for Wills and Probate solicitors.
The note sets out when solicitors should disclose information about the preparation of a Will and the consequences of failing to disclose a copy of a Will to interested parties. Practice notes are not legally binding, but they give a good indication of how solicitors should act in a given situation.
First two sections of the note – duty of confidentiality
The first two sections of the practice note remind solicitors that they owe a duty of confidentiality which continues even after death. It suggests that solicitors should seek proper authorisation before disclosing a testator’s Will and privileged advice in reply to a request for a copy of a Will. Unlike previous versions of the guidance note, this version highlights that authorisation may be obtained from testators themselves (if still alive), from their personal representative, from the court, or from some statutory or other authority.
Third section - Larke v Nugus requests
The second section addresses Larke v Nugus requests. These are requests for information as to the preparation of the Will and the circumstances in which it was executed. This often entails providing a full statement and copies of the Will and Will file. Solicitors are under no duty to comply with such requests, but they do have “a duty to make every effort to avoid potentially costly litigation”.
If the solicitor who drafted the Will is named as the executor, they should ensure that there is a legitimate dispute and that no other legal privilege issues arise. If, however, the solicitor is not named as the executor, they should obtain authorisation from the executor before disclosing the requested information and a copy of the Will.
The updated practice note now specifically addresses situations where the testator’s privilege was shared with some other person(s). It also addresses the possibility of charging a reasonable fee for preparing a Larke v Nugus statement where it is appropriate to do so.
Fourth section refusals to comply
The third section considers refusals to comply with Larke v Nugus requests. Should a solicitor refuse to comply, “there is a serious risk that the beneficiaries of an estate that has been reduced [by the costs of probate litigation] will bring an action to recover costs of litigation against the solicitor who failed to disclose the relevant information at an early stage.” This is because “the purpose of a Larke v Nugus statement is to prevent money being spent on futile litigation [and] the onus is on you to provide a prompt reply and relevant evidence to facilitate early settlement”.
Final sections – how to remain neutral
The final two sections offer guidance to solicitors who are acting as executors. Executors should remain neutral. This means not taking sides and instead simply providing information such as a copy of the Will and Will file to the warring parties. Executors may also need to take steps to secure assets and pay liabilities, preferably with the agreement of the other parties. This may involve applying for a temporary grant.
The new guidance note is a useful reminder that common sense and cooperation can help resolve probate disputes without unnecessary expense or delay. For more information, the full practice note can be found on the Law Society website.
For advice on challenging the validity of a Will, on obtaining a copy of a Will, or on preparing a Larke v Nugus statement, please contact Nicholas Choiniere at 0113 336 3349 or by email at firstname.lastname@example.org.
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