The ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (“The ACTAPS Code”)

 

Paragraph 4 of the Practice Direction on Protocols has been substantially amended. It states that ‘in cases not covered by any protocol, the court will expect the parties to act reasonably in exchanging information and documents relevant to their claim and in trying to avoid the necessity for the start of proceedings’.

Moreover, with effect from 1 April 2003, the 30th update to the CPR imposes on all parties to a dispute (whatever its nature) an obligation to comply with specified procedures designed to avoid litigation commencing.

Practitioners will no doubt remember the dicta of the Court of Appeal in Carlson v Townsend (2001) 3 AER 663 where it stated the use of the protocol was not limited to fast track cases. The spirit if not the letter of the protocol was equally appropriate to some higher value claims. In accordance with the aims of the civil justice reforms, the courts expected to see the spirit of reasonable pre-action behaviour applied in all cases regardless of the existence of a specific protocol.

The Association of Contentious Trust & Probate Specialists ‘ACTAPS’ and the Trust Law Committee have, as many practitioners will be aware, given much thought to the possibility that a special pre-action protocol ought to be developed for disputes within their area of expertise. Indeed a draft has for some time been on the ACTAPS website (www.actaps.com) and has since been the subject of extensive discussions with representatives of the judiciary concerned.

It is now clear that no special protocol will be adopted, despite a recognition that the draft contains useful elements. It will be seen that it deals in particular with the following matters:

(a) appointment of a representative to act on behalf of beneficiaries who cannot be ascertained or traced;
(b) requirement for a letter of claim setting out the basis of claim;
(c) early disclosure of documents;
(d) use of joint experts where possible;
(e) a joint letter of request for medical records;
(f) a joint Larke v Nugus letter; and
(g) a joint letter requesting details of deceased’s capacity.

In these circumstances the committee of ACTAPS has concluded that it would be useful to encourage members to have regard to The ACTAPS Code as a means of developing best practices in areas where special problems may arise, for example the need to have representatives for persons who cannot speak for themselves in a context where others may feel that mediation would be desirable.

It is understood that the judges who have considered The ACTAPS Code have expressed no concerns that it is out of line with the CPR objectives or that to follow its principles would give rise to unnecessary problems in practice. In particular it is thought that CPR Rule 19.7(3)(b) gives the necessary scope for securing the appointment of representatives of those who are absent, unborn, or members of a large class, as well before as after the commencement of proceedings.

It is also hoped that in the context of probate issues the common difficulty of medical practitioners considering that they may as a matter of professional confidence be restricted in releasing records can be overcome by joint application (and following discussions between ACTAPS and the BMA the latter has confirmed that its future guidance will facilitate disclosure in accordance with The ACTAPS Code). The ACTAPS Code contains an outline for such a letter.

In these circumstances it is suggested that practitioners in the areas of trust and probate law should seek to follow the approaches indicated in The ACTAPS Code, approved by the Trust Law Committee and ACTAPS, on the basis that it may serve to amplify the basic principles of the general protocols and indicate considered methods of carrying the objectives of the general protocols into effect in areas which may be found to give rise to special difficulties with which the general protocols do not grapple.  In putting forward this suggestion the committee of ACTAPS believes that it has the support of all who have been concerned to consider the draft protocol; the rejection of the proposal that it be adopted as a special protocol owes nothing (so far as is known) to any perception of defects and merely reflects the belief that the public interest is best served by seeking, where possible, to avoid specific protocols and to develop best practices in areas where general protocols have to be supplemented to meet the needs of special situations.

With that in mind the committee of ACTAPS encourages members and other users to help move the search for best practices forward by commenting on any defects, inadequacies or other difficulties which may be found to arise in carrying the terms of The ACTAPS Code into effect. Please make any such comments to the ACTAPS Chairman’s or the ACTAPS Secretary’s e-mail address.

Practitioners will wish to bear in mind the need for trustees and executors to consider the adequacy of their powers to enter into any particular course of conduct and the possibility that they may need eg Beddoes type directions if they propose a course of conduct to which their beneficiaries might wish to raise objection (as for example where the trustees wish voluntarily to disclose confidential documents to third parties) or which may involve material burdens of costs (as for example the institution of a lengthy mediation). But of course in circumstances where the aim is to explore ways of reaching agreement or otherwise saving costs any necessary order might be expected to be forthcoming (within the appropriate limits) without difficulty on the basis that the Court would be being asked to facilitate a course of action essentially in accordance with the overriding objective.

1.INTRODUCTION

The Scope of The Code

1.1 This Code is intended to apply to disputes about:

  • the devolution and administration of estates of deceased persons
  • the devolution and administration of trust funds (“probate and trust disputes”). It is not intended to displace other protocols if in the circumstances of the case they can be seen to be more appropriate.

The main types of disputes within the ambit of this Code can be expected to be:

  • challenges to the validity of a will, for example on grounds of want of capacity or knowledge and approval, undue influence or forgery
  • claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”)
  • actions for the removal of an administrator or executor or trustee or the appointment of a judicial trustee
  • actions for the rectification of a will or other document
  • disputes as to the meanings of provisions in a will or a trust
  • administration actions
  • allegations of breach of trust.

The ACTAPS Code may also apply to certain types of dispute where the provisions of a trust or the devolution of an estate are of the essence, for example where a claimant seeks in the alternative to set aside or overturn a trust or to take advantage of rights under a trust.

The Code has two aims; to encourage the resolution of disputes without hostile litigation; and even where litigation may be necessary to ensure that it is simplified as far as possible by maximizing the scope for the exchange of relevant information before the litigation process has commenced.

The Code is in general terms unlikely to be appropriate for disputes which involve:

  • disputes as to the rights appertaining under rules of forced heirships under the law of some foreign jurisdiction
  • the need for emergency injunctions
  • (except in so far as concerns pre-action exchange of information) the need for a binding precedent or a declaration by the Court as to the true construction of some trust instrument or testamentary disposition.

The Code is formed in general terms to cover the broad range of trust and probate disputes; but it is recognised that the appropriate investigations and exchange of information will vary according to the circumstances of the dispute. However one of its primary purposes is to provide for a special feature of disputes in this area, namely that there may be beneficiaries who cannot speak for themselves but whose interests must be protected.

1.2 In cases where the express terms of The Code is not appropriate parties will be expected to follow the spirit of The Code and seek to achieve its aims so far as practicable in the particular case.

1.3 It is also to be borne in mind that there are certain cases in which a trust or probate dispute seeks to fulfil some non-contentious purpose, as for example where a question of difficulty is identified to which the parties are agreed that the best solution lies in inviting the Court to approve constructive proposals by way of compromise or where the objective is simply to find the cheapest way of protecting trustees or personal representatives against the risks involved in the existence of some theoretical doubt. In such cases The Code is unlikely to have any role to play.

1.4 One of the principal features of trust and probate disputes is that they may affect the interests of persons not of full capacity, as yet unborn or unascertained, or interested as members of a large class of persons who have similar beneficial interests. The Code is thus designed to make express provision for the need to find mechanisms that assist despite the absence of such persons (providing in particular an expedited process for Court approval of agreements reached in mediation). It is thus wrong in principle to regard a dispute as not amenable to the use of The Code just because there are persons concerned who cannot speak for themselves.

2. PRINCIPAL GUIDELINES

Parties

2.1 The parties to the probate or trust dispute will usually be trustees (or personal representatives or persons claiming to be entitled as such) and beneficiaries of the trust or estate who are of full capacity, though The Code is designed also to be capable of being used in exterior/third party disputes where appropriate.

2.2 In the case where interests of unascertained persons, minors, unborns, mentally incapacitated persons or members of a large class (such that it is not appropriate for all members of the class to be made parties to the dispute) will be affected, the procedure to be adopted will be an application to the Court (see Annex A) whether or not a claim has yet been instituted before the Court.

Status of Letters of Claim and Response

2.3 A letter of claim or of response is not intended to have the same status as pleadings. Matters may come to light as a result of investigation after the letter of claim has been sent or after the defendant has responded. These investigations could result in the pleaded case of a party differing in some respects from the case outlined in that party’s letter of claim or response. It would not be consistent with the spirit of The Code for a party to complain about this difference provided that there was no indication of any intention to mislead.

Disclosure of Documents

2.4 The aim of the early disclosure of documents by the defendant is not to encourage “fishing expeditions” by the claimant, but to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute. The claimant’s solicitors can assist by identifying in the letter of claim or in a subsequent letter the particular documents or categories of documents which they consider are relevant, and by providing copies of these where appropriate.

2.5 All documents are disclosed on the basis that they are not to be disclosed to third parties (other than legal advisers) or used for any purpose other than the resolution of the dispute, unless otherwise agreed in writing or permitted by the court.

Experts

2.6 Expert evidence appropriate to probate and trust disputes may include in particular medical evidence, handwriting evidence, valuation evidence, tax- related or actuarial evidence.

2.7 The Code encourages joint selection of, and access to, experts. However, it maintains the flexibility for each party to obtain their own expert’s report. It is for the court to decide whether the costs of more than one expert’s report should be recoverable.

Costs

2.8 Where The Code provides for the initial cost of obtaining information or reports to be borne by one party, it shall not restrict the court’s discretion in relation to ultimate liability for such costs.

Negotiations/Mediation

2.9 Parties and their legal representatives are encouraged to enter into discussions and/or negotiations prior to starting proceedings. The parties should bear in mind that the courts increasingly take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is in reasonable prospect. Mediation of probate and trust disputes may assist in achieving a compromise, particularly in relation to disputes between family members. The form of the mediation will be set out in the mediation agreement between the mediator and the parties.

2.10 Mediation can be used to try to achieve a compromise whenever negotiation is appropriate and can be used at any stage in a trust dispute. Typically mediation may be considered:-

(i) before proceedings have commenced but once the issues are fairly well defined and the parties affected by them are known;

(ii) even after proceedings have commenced and the statements of case have been served so that the parties have a better appreciation of the issues;

(iii) at any critical stage in the litigation such as after disclosure of documents, exchange of experts’ reports, exchange of witness statements and in the lead up to the trial.

The parties should seek to conclude a mediation within 42 days of the appointment of the mediator.

2.11 Since mediation negotiations are treated by the Courts as without prejudice, points disclosed during an attempt to reach a settlement will be confidential between the parties and cannot be used as evidence in subsequent Court proceedings unless expressly agreed by the party who made the disclosure. The mediator will not divulge information without consent. Also he will not pass on such information to outside parties or act for either party to the dispute in subsequent proceedings.

2.12 A settlement reached pursuant to a mediation should be recorded in writing and signed by the parties or their authorised representative. In probate and trust disputes, if and insofar as the subject matter of the dispute requires the sanction and approval of the Court, any agreement achieved as a result of the mediation should be expressed to be subject to the approval of the Court.

2.13 In a probate or trust dispute where the position of the Inland Revenue may have some bearing on any compromise solution which may be reached, any agreement may be made conditional upon indications of the Inland Revenue’s position or adjourned to enable clarification of its position to be sought.

3. THE CODE

Letters of Claim

3.1 The Claimant shall send a letter of claim to each of the deceased’s personal representatives or to the trustees, as the case may be and, unless it is impractical (e.g. because there is a large class of beneficiaries or the beneficiaries are minors) to each beneficiary or potential beneficiary of the estate or trust fund likely to be adversely affected by the claim (referred to as “the proposed Defendants”), as soon as sufficient information is available to substantiate a realistic claim which the Claimant has decided he is prepared to pursue.

3.2 The letter shall contain a clear summary of the claim and the facts upon which it is based and state the remedy sought by the claimant.

3.3 Solicitors are recommended to use a standard format for the claim letter. A sample letter is set out at Annex B; this can be amended to suit the particular case.

3.4 In claims under the Inheritance Act the claimant should give details to the best of his ability of the matters set out in Section 3 of the Inheritance Act as relevant to the exercise of the Court’s discretion (see Annex B).

3.5 Copies of documents in the claimant’s possession which he wishes to rely upon or which any other party is likely to wish to rely upon should be enclosed with the letter of claim. Examples of documents likely to be relevant in different types of dispute are set out at Annex C. These lists are not exhaustive. The letter of claim may specify classes of document considered relevant for early disclosure by the proposed defendants.

Letter of Response

3.6 Each of the proposed defendants should respond to the letter of claim within 21 days stating whether he admits or denies the claim, responding in outline to the matters of fact relied upon by the claimant and setting out any particular matters of fact upon which he relies. If a proposed defendant intends to make an answering claim on his own behalf, the letter of response should contain the same information and documents as a letter of claim in relation to the Part 20 claim. If a proposed defendant is unable to respond within the time limit on any particular matter, the letter of response should give the reasons for the absence of a full response and state when it will be available.

3.7 In claims under the Inheritance Act each proposed defendant should give details to the best of his ability of the matters set out in Section 3 of the Inheritance Act as relevant to the exercise of the Court’s discretion (and set out in Annex B).

3.8 Copies of documents in the proposed defendant’s possession which he wishes to rely upon or which any other party is likely to wish to rely upon should be enclosed with the letter of response. Examples of relevant documents in relation to different categories of disputes are set out at Annex C. These lists are not exhaustive.

Documents

3.9 In relation to the documents in Annex C, the personal representatives of the deceased (including executors named in the last alleged will of the deceased) or trustees as appropriate should provide copies of such documents (if available) to a party requesting a copy within 14 days of the date of a letter of request (or such other reasonable time as may be agreed between the parties) or, if a copy is only available from a third party with the consent of the personal representatives or trustees, provide to the party making the request written authority to the third party to provide a copy of the document to that party.

3.10 Trustees or personal representatives should not be inhibited from making full disclosure by the absence of litigation.

Applications for documents or information in control of third parties

3.11 In a probate dispute the release of medical notes may cast much light on the likely outcome and it should be assumed for the purposes of The Code that they ought to be disclosed at the outset absent special reason.

3.12 If so requested in writing by any party all parties shall (in the absence of good reason to withhold the relevant items) within 14 days of any such request (or such longer period as shall reasonably be agreed):

(1) Sign and return to the party making the request, a joint application for the provision of copies of the deceased’s medical notes or social worker’s reports to all parties. The notes and/or reports should be sent separately and directly to each party. A specimen joint application is at Annex D.

(2) Sign, and return to the party making the request, a joint application for a statement by the solicitor who prepared the will of the deceased setting out all the circumstances leading up to the preparation and making of the will. A specimen joint application is at Annex E.

3.13 The party making the request for a joint application for information or documents from a third party shall:

(1) Submit it to the third party within 7 days of receipt of the joint application completed by the other parties.

(2) on receipt of the information or documents from the third party check that they have been received by all other parties and, if not, provide them with copies within 7 days of receipt.

3.14 In cases where the mental capacity of a deceased at the date of a testamentary instrument is in issue, the party seeking to uphold the testamentary instrument should obtain a report as to the deceased’s mental capacity from his GP as soon as possible after the issue is identified and send it to all other parties within 7 days of receipt. A specimen letter of request is at Annex F.

Experts

3.15 Parties should consider the use of jointly instructed experts so far as possible. Accordingly before any prospective party (the first party) instructs an expert he should (unless of the opinion that another party will want to instruct his own expert) give the other (second) party a list of the name(s) of one or more experts in the relevant discipline whom he considers are suitable to instruct.

3.16 Within 14 days the second party may indicate an objection to one or more of such experts and suggest alternatives. The first party should then instruct a mutually acceptable expert.

3.17 If an expert to be jointly instructed is not agreed, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably. No party shall be entitled to instruct an expert proposed in a list of experts for joint instructions until it is clear that joint instructions cannot be agreed and thereafter the party who submitted the list of experts shall be entitled to nominate one of the experts on this list as his own chosen expert and no other party shall instruct any expert named on the list until such nomination has taken place.

3.18 If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular discipline unless:

(1) the court so directs, or
(2) the first party’s expert report has been amended and the first party is not prepared to disclose the original report.

3.19 Either party may send to the expert written questions on the report, relevant to the issues, via the first party’s solicitors. The expert should send answers to the question separately and directly to each party.

3.20 The cost of the report from an agreed expert will usually be paid by the party first proposing that a joint expert be instructed. The costs of the expert replying to questions will usually be borne by the party asking the questions. The ultimate liability for costs will be determined by the Court.

ANNEX A

Representation in Estate or Trust Disputes of interested persons who cannot be ascertained etc.

(1) In any estate or trust dispute concerning:-

(a) property comprised in an estate or subject to a trust or alleged to be subject to a trust; or

(b) the construction of a written instrument; or

(c) a situation where the interests of beneficiaries may require separate representation

the Court, if satisfied that it is expedient to do so, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including a person under a disability, a minor or an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the dispute.

(2) The conditions for the exercise of the power conferred by paragraph (1) are as follows:-

(a) that the person, the class or some member of the class cannot be ascertained or cannot be readily ascertained, or is not of full capacity; or

(b) that the person, the class or some member of the class, though ascertained, cannot be found; or

(c) that, though the person or the class and members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purposes of saving expense or for any other reason.

(3) Where, in any case to which paragraph 1 applies, the Court exercises the power conferred by that paragraph, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed.

(4) Where, in any such case, a compromise is proposed and some of the persons who are interested in, or who may be affected by the compromise have not been consulted (including persons under a disability, minors or unborn or unascertained persons) but

(a) there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise; or

(b) the absent persons are represented by a person appointed under paragraph (1) who so assents, the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts.

ANNEX B

To
Defendant

Dear

Re:

The estate of [name of deceased]
The Settlement made by [Settlor] on [date]

We are instructed on behalf of [claimant] [give details of relief sought eg to seek reasonable provision out of the estate of the above-named deceased; to set aside probate of the will of the above-named deceased dated [date]; to seek a declaration that upon a proper construction of the above settlement our client is entitled to …]

The basis of our clients claim is: [brief outline]

The facts upon which our client relies are as follows:- [set out material facts with sufficient clarity and detail for the proposed defendants to make a preliminary assessment of the claim]

The details of matters to which the Court would have regard under Section 3 of the Inheritance (Provision for Family and Dependants) Act 1975 insofar as they are known to our client are:-

(a) Financial resources and needs of claimant;

(b) Financial resources and needs of any other claimant;

(c) Financial resources and needs of beneficiaries;

(d) Obligations and responsibilities of deceased towards claimants and beneficiaries;

(e) Size and nature of estate;

(f) Disabilities of claimants and beneficiaries;

(g) Any other matter; and if claimant spouse or co- habitee,

(h) age of claimant, length of marriage/co-habitation and contribution to family welfare.

We enclose the following documents which are relevant to the claim:-
[list documents]

In accordance with The ACTAPS Code for probate and trust disputes, we look forward to receiving a letter of response, enclosing the documents in your possession and relevant to the claim within [21] days. We believe that the following documents relevant to the claim are likely to be in your possession:- (list documents)

Pursuant to The ACTAPS Code as [personal representatives of the deceased/trustees of the settlement] we invite you to furnish us within 14 days of the date of this letter with copies of the following documents or written authority, in the form enclosed, to obtain copies of such document(s):- [list asterisked documents required]

We have also sent a letter of claim to (name and address) and a copy of that letter is enclosed.

Yours faithfully

 

ANNEX C

All documents upon which you rely or upon which the other party is likely to wish to rely including but not limited to the following categories:

  1. In disputes in which the assets of an estate/trust fund or the financial resources of an individual are relevant; eg claims under the Inheritance Act, breach of trust claims:

– The Inland Revenue Account and any Corrective Account;

– A schedule of the capital assets (with values, estimated where appropriate) and income of the estate, trust fund or individual as appropriate;

– Trust or Estate Accounts.

  1. In disputes in which the mental capacity or medical condition of an individual is relevant, eg challenges to testamentary capacity, Inheritance Act claims where disability is alleged:

– A copy of the medical records of the individual or, if appropriate, the written authority of the personal representatives of a deceased to obtain his medical records together with an office copy of the grant of probate or letters of administration or other proof of their status.

  1. In disputes as to the validity, construction or rectification of a will or other testamentary instrument of the deceased:

– A statement setting out details of any testamentary script (now in CPR called testamentary document) within the knowledge of the claimant or proposed defendant and details of the name and address of the person who, to the best of his knowledge, has possession or control of such script.

Nb1: The provision of the statement in 3 above is of vital importance to all parties in a dispute since it ensures that the correct testamentary documents are being considered. This will prevent the problem of a dispute over a later testamentary document being allowed to overshadow the existence of an intermediate testamentary document which would be upheld if the later testamentary document fails.

Also it helps identify the correct parties to the existing disputes.

Nb2: Following from Nb1 above, it is most important that the fullest and most exhaustive search for all testamentary documents is made. Accordingly while the following list is not exhaustive it is incumbent upon all parties to check:-

(i) with all known solicitors of the deceased as to the existence of a testamentary document;

(ii) with all attesting witnesses to testamentary documents as to the existence of testamentary documents;

(iii) with all named executors of testamentary documents as to the existence of testamentary documents;

(iv) with immediate family members (brothers, sisters, parents and children of the deceased) as to the existence of testamentary documents.

Nb3: Definition of Testamentary Script (now in CPR called Testamentary document)

A will, a draft of a will, written instructions for a will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed. The word “will” includes a codicil.

ANNEX D

JOINT APPLICATION FOR MEDICAL NOTES OR SOCIAL WORKER’S REPORTS

To: The medical records officer/social services

Dear Sir

Re: (Name) Deceased of (address), (date of birth)

We the undersigned Messrs (firm’s name) (ref ) of (firm’s address), Solicitors for (the Executors named in the Will of the late (deceased’s name) of (deceased’s address) who died on (date of death) and we, the undersigned Messrs (firm’s name) of (firm’s address), Solicitors for parties interested in his/her estate, hereby authorise you to forward [a full set of copies of the deceased’s Medical Records] [all social workers reports and notes relating to the deceased] to each of the aforementioned firms.

We confirm that we will be responsible for your reasonable photocopying charges and your invoice in this regard should be sent to (firm’s name) and marked for the attention of (ref. ).

Dated [                                  ] 200[     ]

Signed
…………………………………………….

Signed
……………………………………………..

ANNEX E

Joint Application Letter to solicitors who prepared Will requesting Larke -v- Nugus Statement

Dear Sirs

[Name of Deceased] deceased

We, the undersigned Messrs (firm’s name)(ref: ) of (firm’s address), solicitors for the Executors named in the Will of (deceased’s name) of (deceased’s address) and we, the undersigned Messrs (firm’s name)(ref: ) of (firm’s address), solicitors for parties interested in his/her estate regret to inform you that (deceased’s name) died on (date of death)

We understand that you drafted the deceased’s last will dated [                 ].

You may be aware that in 1959 the Law Society recommended that in circumstances such as this the testator’s solicitor should make available a statement of his or her evidence regarding instructions for the preparation and execution of the will and surrounding circumstances. This recommendation was endorsed by the Court of Appeal on 21st February 1979 in Larke v Nugus.

The practice is also recommended at paragraph 24.02 of the Law Society’s Guide to the Professional Conduct of Solicitors, 7th edition (page 387), and that advice was highlighted and supplementary information provided by the Law Society Practice Note of 6 October 2011, on disclosing such information, the consequences of failing to do so, and protecting the estate.

Accordingly, we hereby request and authorise you to forward to each of the aforementioned firms statements from all appropriate members of your firm on the following points:

  • How long had you known the deceased?
  • Who introduced you to the deceased?
  • On what date did you receive instructions from the deceased?
  • Did you receive instructions by letter? If so, please provide copies of any correspondence.
  • If instructions were taken at a meeting, please provide copies of your contemporaneous notes of the meeting including an indication of where the meeting took place and who else was present at the meeting.
  • How were the instructions expressed?
  • What indication did the deceased give to you that he knew he was making a will?
  • Were you informed or otherwise aware of any medical history of the deceased that might bear upon the issue of his capacity?
  • Did the deceased exhibit any signs of confusion or loss of memory? If so, please give details.
  • To what extent were earlier wills discussed and what attempts were made to discuss departures from his earlier will- making pattern? What reasons, if any, did the testator give for making any such departures?
  • When the will had been drafted, how were the provisions of the will explained to the deceased?
  • Who, apart from the attesting witnesses, was present at the execution of the will? Where, when and how did this take place?
  • Please provide copies of any other documents relating to your instructions for the preparation and execution of the will and surrounding circumstances or confirm that you have no objection to us inspecting your relevant file(s) on reasonable notice.

We confirm that we will be responsible for your reasonable photocopying charges in this connection and your invoice in this regard should be sent to (each firm’s name etc) and marked for the attention of (each firm’s ref.).

Dated this [         ] day of [                                                ] 200[   ]

Signed
…………………………………………..

Signed
………………………………………….

ANNEX F

LETTER TO DECEASED’S GP REQUESTING REPORT AS TO MENTAL CAPACITY

To: Deceased’s GP

Dear Dr …..

Re: (Name) Deceased of (address), (date of birth)

We the undersigned Messrs (firm’s name) (ref ) of (firm’s address) are Solicitors for (the Executors named in the Will of the late (deceased’s name) of (deceased’s address) who died on (date of death) and we, the undersigned Messrs (firm’s name) of (firm’s address), are Solicitors for parties interested in his/her estate.

We enclose a photocopy of the deceased’s last Will. The clauses in the Will which cause particular concern are (clause numbers)

The question of the deceased’s mental capacity at the time of the making of his/her last Will dated has now been raised.

The test of testamentary capacity remains that established in the case of Banks -v- Goodfellow where it was said:-

“It is essential that a testator (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; and (3) shall be able to comprehend and appreciate the claims to which he ought to give effect, and; with a view to the latter object, (4) that no disorder of mind shall poison his affections, pervert his sense of right or pervert the exercise of his natural faculties; (5) that no insane delusions shall influence his mind in disposing of his property and bring about a disposal of it which if his mind had been sound, would not have been made.” (We have added numbers for convenience).

(Set out the nature of the Estate if complex).

We would therefore be grateful if you would kindly provide us with a report setting out:-

  1. Your medical qualifications and your experience in assessing mental states and capacity
  2. For how long you were the deceased’s GP, how well you knew the deceased and a summary of his/her medical condition, insofar as it may have bearing upon the deceased’s mental capacity.
  3. Your findings as to the deceased’s mental capacity at and around the time of the date of his/her last will.
  4. Please also deal with any mental disorder from which the deceased may have been suffering at the relevant time, and any medication which could have affected his/her capacity as detailed above.
  5. Please also consider any issues of vulnerability or suggestibility at or around the date of the deceased’s last Will

We confirm that we will be responsible for your reasonable fees in the preparation of your report which we look forward to receiving as soon as possible.

Dated this [        ] day of [                                                        ] 200[    ]

Signed
……………………………………………………. (ref:                               )

Signed
……………………………………………………. (ref:                               )

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