Probate/intestacy stalemate query

posttokev

RAS wrote: »

http://www.lawsociety.org.uk/advice/practice-notes/disputed-wills/ refers to Larke v Nugus

I feel like an expert in Larke v Nugus now! Been reading up on it a lot recently - "knowledge is power" and all that...

madbadrob

However reading that there is no requirement under good practice to supply a copy of the will and they would have to ask the executors of the will if they could indeed disclose it.

That said I would now be asking by telephone if a Larke v Nugus request has been requested and if not why not.

Rob

madbadrob

Although reading the full judgement from that case it is stipulated within it that if requested where a will is disputed then the will should have been produced so I guess this is one for the solicitors to argue

Rob

posttokev

madbadrob wrote: »

Although reading the full judgement from that case it is stipulated within it that if requested where a will is disputed then the will should have been produced so I guess this is one for the solicitors to argue

Rob

The copy of the Will was produced early on (not the original as it was allegedly "stolen"). The other party's solicitors seem very anxious not to produce the Will file though.

madbadrob

The will file should be produced if requested although that is only a guideline and if they dont then even if you are found to have no case you can argue that all your costs be paid because had you known that this was the situation you would not have proceeded with the claim which is what this case was all about

Rob

posttokev

madbadrob wrote: »

The will file should be produced if requested although that is only a guideline and if they dont then even if you are found to have no case you can argue that all your costs be paid because had you known that this was the situation you would not have proceeded with the claim which is what this case was all about

Rob

This is a thought that's been in the back of my mind but thanks very much for articulating it for me Rob.

posttokev

Another (!) update...

My mother's solicitor has emailed back with a response to the fax sent last Friday, asking the other party's solicitors to provide the Will file by 16:00 today or we'll make an application to the court for Disclosure tomorrow morning.

They are employing a tactic they've used a number of times previously, attempting to portray our case as that which it isn't, saying we've said things that haven't been said. (They attempt to dictate to us what our case is, rather than us dictating this for ourselves.)

They have again refused to disclose the Will file, saying "You will appreciate that the Actaps code is not to promote fishing expeditions. The purpose of the Code is to enable an early exchange of relevant information to help clarify or resolve the issues in dispute." (They put those words in bold.)

How they can continue to claim that the Wile file does not constitute "relevant information" is beyond me and I find their attempts to characterise our request for same as a "fishing expedition" weak, to say the least.

Further, they go on to say "...please set out why the file is relevant to your client's case..."

I have lost count of how many times we have done this now.


The application to the court for Disclosure is due to be made tomorrow morning. Does anyone know how long it takes for this to be seen by the court and then enacted? (Also, any thoughts on how likely it is the court will grant us Disclosure? Do they tend to do this if you present a reasonable case?)

madbadrob

It will depend on the courts available time but I would expect that if you submit to the court that you wish for a hearing for disclosure that it would be at worst within 28 days especially as this can be heard in chambers and therefore doesnt really require a full sitting.

The will file should set out where the will was written any and all contemperaneous notes taken from any conversation that the solicitor had with the deceased. Things which will allow you to decide whether there is a case to be handled. The other parties cannot charge for this but they can charge for photocopying. This is in my opinion not a fishing expedition but a requirement to save a case going to court that you may have no legal grounds to take. I would if I had been your solicitor replied with I want to see ..... and then listed everything I would have done had I been a lawyer. Thus meaning the whole file

Rob

posttokev

Solicitor's now telling us the application for a Disclosure Order will cost 3 grand...

RAS

Do you have to be legally represented? Could you go as Litigant in person?