Executors To Give Information Avoiding Expense
(Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, ‘in favour of persons on whom the testatrix is dependent’, and the executor, who was a solicitor who had been responsible for drawing up the will, had taken the view that the defendants were not entitled to a copy of it or to any explanation of the circumstances in which it had been drawn up.
Held: Where there is a potential dispute over the validity of the Will, the executors should make every effort to avoid costly litigation. One of those measures was to provide full and frank information as to how the Will came to be made. The costs of a defendant who had unsuccessfully put in issue the question of knowledge and approval by the testator of a will were nevertheless left to come out of the estate.
Brandon LJ said: ‘Nevertheless, it is necessary to consider, not only the recommendation itself, but the principle upon which the recommendation is based, and the duty of a solicitor when faced with matters of this kind. The recommendation is no doubt of importance, but even if it had not been made certain principles would apply to the matter, and in my judgement the principle which applied is that, when there was 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 a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will, as to how the will came to be made.’
and
‘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.’
Judges:
Brandon LJ
Citations:
[2000] WTLR 1033, (1979) CA p337
Jurisdiction:
England and Wales
Cited by:
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – Mausner and Another v Mincher and Another ChD 26-Apr-2006
. .
Cited – Jarrom and Another v Sellars ChD 24-Apr-2007
. .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Costs
Leading Case
Updated: 11 June 2022; Ref: scu.266581