Analysis
By a will dated 29 May 2017 (the will), Eric Tabet (the testator) gave the whole of his estate to the claimant. The testator, who suffered from long-standing mental illness, had recently been diagnosed with a brain tumour. The will, which was in accordance with the testator’s long-held testamentary intentions, was drawn up by Mr Jamal Hammoud, his close friend for 30 years. He is said to have prepared the will in accordance with those instructions, to have read it aloud to the testator and to have witnessed his signature of it together with another friend, Mr Moshin Lakhim. The testator died on 21 July 2017 and the claimant brought a claim seeking proof of the will in solemn form. The defendants, who were estranged siblings of the testator, would be entitled to his estate under the rules of intestacy and challenged the validity of the will on grounds that the testator had not signed the will, lacked testamentary capacity and had not known or approved the contents of the will.
Mr Hammoud and Mr Lakhim both produced statements as to the circumstances leading up to the preparation and execution of the will. A limited number of documents had been exhibited by them and the defendants’ solicitors wrote to them seeking the disclosure of further documents and information. When this was denied, the defendants made an application seeking an order for non-party disclosure by Mr Hammoud and Mr Lakhim.
Held (granting the application in part):
CPR 31.17 (as retained in PD 51U) set out the principles; namely that:
- (i) the documents must be likely to support the defendant’s case or undermine the claimant’s case;
- (ii) the disclosure must be necessary to dispose fairly of the claim or save costs; and
- (iii) if the preceding two conditions are satisfied, the court has a discretion as to whether to order non-party disclosure.
Ordering disclosure against non-parties was the exception rather than the rule and the jurisdiction should be exercised with caution. The court’s powers under ss122 and 123 of the Senior Courts Act 1981, the well-known guidance in Larke v Nugus and the special rules applying to probate claims in CPR Pt 57 reflected the quasi-inquisitorial nature of the probate jurisdiction. This arose from the fact that a grant in solemn form was binding on all those interested in the estate with notice of the proceedings and was conclusive proof of the personal representatives’ title to the whole world. When, therefore, the court considers whether the disclosure sought is necessary to determine the claim, this has to be determined in the context of the quasi-inquisitorial nature of probate claims. The first question was whether the documents sought were relevant to the case – the requirement of relevance must first be met before the question of necessity is considered. Each of the classes of documents sought were considered and orders made in exercise of the court’s discretion in respect to those which satisfied both the relevance test and the necessity test.
JUDGMENT MASTER CLARK: [1] This is my decision on the defendants’ application dated 27 March 2020 seeking non-party disclosure pursuant to CPR 31.17 (as retained in PD 51U – ‘the disclosure pilot’). Parties and claim [2] The claim is a probate claim seeking proof in solemn form of a will dated 29 May 2017 (‘the …Continue reading "Gardiner v Tabet & anr [2020] WTLR 931"