WHR and another v WHT and others

[2] LLT made a will (“the Will”) in 1999 with the assistance of his solicitor Ms Ho Soo May Evelyn (“Evelyn Ho”) of May & Co. On 6 August 2008, LLT appended a codicil (“the Codicil”) to the Will. The Codicil was also prepared by Evelyn Ho on LLT’s instructions. The plaintiffs are the named executors under the Will. Life for the family carried on as before, and, in spite of the substantial estate, no probate action was taken until 2015. It was only when the first and second defendants gave notice that they would be applying for grant of letters of administration in LLT’s estate that the first plaintiff informed the family of LLT’s will. On 5 March 2015, a safe belonging to LLT in his office was opened by a supervising solicitor, Mr Mahendra Segeram, and the Will and Codicil was read out by Mr Segeram to all of LLT’s children. Subsequently, the first and second defendants issued a citation and then filed an ex parte ad colligenda bona grant application. The plaintiffs commenced the present action shortly thereafter.

[3] By this action, the plaintiffs seek to prove the Will and the Codicil. The third, fourth, fifth, seventh, eighth, ninth, tenth, 11th, 12th, 13th, and 14th defendants have filed their respective defences stating that they have no specific knowledge of the Will and Codicil and appear to accept the Will and Codicil as legally executed. Only the first, second, and sixth defendants do not admit that the Will and Codicil were legally made and authentic. None of these three defendants have made any specific claim that the Will or Codicil was not authentic or legally made. In fact, these three defendants have pleaded in their respective Defences that they are merely insisting upon the Will and Codicil being proven in solemn form of law, and only intend to cross-examine the witnesses produced in support of the Will and Codicil, pursuant to Rule 855(1) of the Family Justice Rules 2014 (S 813/2014) (“FJR”). In effect, their position is the same as that of all the other defendants who are prepared to let the probate action take its course.

[4] The first and second defendants, however, have taken a step further by applying in Summons 148 of 2020. By this summons, the first and second defendants seek discovery of the documents kept by May & Co relating to the Will and Codicil. Among the documents sought by them are drafts of the Will and Codicil, as well as communication between LLT and his solicitors and documents of May & Co’s evaluation of LLT’s mental capacity.

[5] In the same Summons 148, the first and second defendants also seek interrogatories against Evelyn Ho, requiring her to give details of the instructions given to the Will and Codicil. They wish to question Evelyn Ho regarding how LLT gave instructions, what instructions he gave, and how he gave them. They also wish to know how LLT understood the process, as well as his intentions in respect of which he sought advice on the Codicil.

[6] Ms Molly Lim SC, counsel for May & Co, submitted that her clients will testify as required at the appropriate stage, namely at the hearing of the claim for proving the Will.

[7] Mr William Ong, counsel for the first and second defendants, referred me to several authorities, beginning with a passage from a textbook, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Alexander Learmonth et al gen eds) (Sweet & Maxwell, 21st Ed, 2018) that led counsel to argue that the case cited therein, Re Moss, Larke v Nugus [2000] WTLR 1033 (“Larke v Nugus”), supported the proposition that beneficiaries may, before a probate claim is commenced, issue to the solicitors who prepared a will, a request for the kind of information that the first and second defendants here seek.

[10] Counsel also relied on the Canadian case of Geffen v Goodman Estate [1991] 2 SCR 353 (“Geffen”), which concerned a challenge to the admissibility of the evidence of a solicitor who had drafted a trust agreement specifying how a deceased woman’s property would be distributed upon her death. In that case, the Supreme Court of Canada held (at 384) that the law permits solicitors to give evidence on the circumstances surrounding the execution or contents of a will in probate cases. However, Geffen can be distinguished from the present case as it concerned a specific allegation of undue influence, and the solicitor’s testimony was only heard during the trial. The court did not comment on whether the solicitor’s evidence ought to have been disclosed prior to the commencement of the trial.

[11] The only directly applicable law is s 128(1) of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”). It is so clear that I need only set it out verbatim:

The only exceptions are found in subsection (2) which provides:

[12] In my view, the communications between LLT and Evelyn Ho are clearly privileged under s 128(1) of the EA. The first and second defendants do not suggest that the exceptions under s 128(2) are made out. Nor have the plaintiffs conducted themselves in such a manner as to expressly or impliedly waive LLT’s privilege. The mere fact that the plaintiffs have disclosed some drafts and records in respect of the Will does not mean that they had waived LLT’s privilege in respect of all the privileged documents and information the first and second defendants seek. In any event, the issue of waiver of privilege is one that should be addressed at trial when counsel is under cross-examination.

[14] If the first and second defendants are right, then anyone claiming to be the beneficiary of a will, including charities and sundry beneficiaries on which a testator might wish to confer testamentary gifts, may also apply to inspect the confidential files of the testator’s solicitors. It cannot be the intention of any testator to invite such scrutiny of his private intentions and instructions.

[16] Counsel for the first and second defendants also submitted that the plaintiffs be put to election in that if they wish to claim privilege, they must expunge the references to communication between LLT and May & Co. As with the issue on waiver of privilege, this issue is best left for the pleaded defence and the plaintiffs’ reply, and should be dealt with at trial.