Estate litigation, or disputes over wills, is one of the largest growing areas of legal practice.
Most solicitors draw wills. It is not surprising then that most solicitors, at some time or another, will be faced with a challenge to a will they drew.
The Queensland Law Society (QLS) is the first law society in Australia to publish a Guidance Note on Disputed Wills.
The note directs solicitors as to their ethical obligations in the face of a challenge to the validity of a will. It provides instructions and recommendations to solicitors who find themselves in the unfortunate situation of facing a challenge to a will they (or someone in their firm) have drawn. It is a useful and practical tool for the assistance of Queensland solicitors and the QLS is to be commended for its introduction.
The full Guidance Note can by found on the QLS Ethics website available here.
The note is derived from a similar note published by the Law Society of England and Wales and approved by the Court of Appeal in Larke v Nugus (2000) WTLR 1033.
Confidentiality and privilege issues
Solicitors have a duty not to disclose confidential client information. That duty survives the death of the client and passes to his/her legal personal representative.
However, where the validity of the will is disputed the duty of confidentiality will not apply where you are asked to disclose information about the circumstances in which you received instructions for the will and the circumstances in which the will was signed.
Further, privilege cannot be claimed by the legal personal representative under the deceased’s will as against another person having a similar claim in respect to the information given by the deceased to the solicitor during the deceased’s lifetime. The solicitor can be compelled under subpoena to answer questions as to the instructions given to the solicitor by the deceased client. Privilege cannot be claimed.
Where a serious dispute arises questioning the validity of the will, the Council of the Law Society of England and Wales recommends that the solicitor make available a statement of his or her evidence as to the circumstances in which the deceased gave instructions and the deceased signed the will. The statement is to be given to any interested person in the dispute. That recommendation was subsequently approved by the Court of Appeal in Larke v Nugus1. Brandon L.J. affirmed these principles in the following terms:
“…….in my judgment the principle which applied is that, when there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have interest in attacking the will as to how the will came to be made”.
The QLS note provides that if you receive a Larke v Nugus letter, you should provide a statement to anyone who has an interest in the dispute, whether or not you act for that person. This applies even if you act for the person seeking to prove the disputed will. The note sets out the specific matters that your statement should at least cover and also provides that you should give a copy of the contents of your will file if requested.
Ethical and negligence issues
In England and Wales a failure by a solicitor to respond to a Larke v Nugus enquiry can be a breach of professional duty. The Courts in England and Wales have made costs orders against solicitors who have failed to supply the information which has been sought under a request made within the above stated principle.
Once it is clear that there is a serious dispute as to the validity of the will, the draftsperson is likely to be a material witness in the contested proceedings. Rule 13(4) of the Legal Profession (Solicitors) Rule 2007 states that a solicitor must not, unless exceptional circumstances warrant, continue to act for a client. A breach of the rule may have disciplinary consequences for you. The other party may also apply to the court to restrain you continuing to act.
If you are concerned an allegation as to negligence could be made against you, then you should inform the legal personal representative and beneficiaries under the will that they should take independent legal advice and notify your insurer.
All Queensland solicitors who draw wills should be aware of and comply with the Guidance Note when faced with a challenge to a will someone in their firm has drawn.
In the writer’s view best practice is always to refer the parties to other lawyers to act.