Battles over the validity of Wills are becoming more and more common. A recent Court of Appeal case considered the step before any validity action, ie how someone gets hold of a copy of a Will at all.
Section 7(3) of the Probate and Administration Ordinance provides a mechanism by which someone holding a testamentary document can be forced by way of a subpoena to deposit that document with the Probate Registry. However, that section does not set out what the test should be for someone applying for such a subpoena. Consequently, the Court had to grapple with whether there should be a test for standing and, if so, what the appropriate test might be.
The Court of Appeal held that it was appropriate to have a threshold which had to be met. This was by no means to be assumed, because – for example – lodging a caveat with the Probate Registry does not require the caveator to demonstrate any kind of interest. Once it had established that a threshold was appropriate, the Court set the test as follows: for the purpose of applying for a subpoena under s.7(3) some evidence showing a prima facie interest or standing of the person making the application is required.
The threshold is set at a relatively low level and would allow (as it did in this case) someone not named in the Will, or even perhaps unlikely to benefit under an intestacy, to apply for the Will to be deposited and subsequently get a copy.