The Law Society published an updated version of its disputed Wills practice note on 11 December 2018 which revisits the issues of sharing information with a third party when requested. A link to the updated practice note can be found here.
This note reminds practitioners of their duty of confidentiality and the legal advice privilege owed to the testator and the testator’s personal representatives.
The practice note now also mentions situations where privilege may be shared with someone else so that their permission should also be sought before the privilege is waived.
Generally the case of Larke v Nugus [2000] WTLR 1033 is considered to be the main authority on this point. However the new note now points to the decision in Buckenham v Dickinson [2000] WTLR. 1083, which held that a will drafter was expected to disclose information about the drafting of the Will to a Claimant even though the drafter was not named as an executor.
This appears to shed doubt on the scope of best practice guidance given by the court in Larke v Nugus which was previously thought by some commentators only to apply to will drafters who were also executors (as these were the particular facts in that case).
To cover the potentially wider application of the court’s guidance, the updated practice note advises Will drafters who are not named executors but who, nonetheless, choose to respond to a Larke v Nugus letter, to first require confirmation that neither the named executor nor any other person can make a claim to privilege in the material that is to be disclosed and that they consent to the disclosure.
The uncertainty over who the Larke v Nugus is unhelpful, particularly given that those principles originally referred to recommendations made by the Law Society in an earlier version of the guidance.
Best practice must still be to consider, in each case, whether privilege belongs to any third parties who may need to give permission before details surrounding the preparation of the Will are disclosed.
If you would like more information relating to contentious probate matters, please contact stephen.stewart@elselaw.co.uk or call the office on 01283 526 200.