Case Details
- Citation: [2020] SGHCF 14
- Title: WHR and another v WHT and others
- Court: High Court of the Republic of Singapore (Family Division)
- Case Number: Suit No 4 of 2019
- Summons: Summons No 148 of 2020
- Date of Decision: 2 October 2020
- Dates Heard/Reserved: 23 September 2020; 30 September 2020 (judgment reserved)
- Judge: Choo Han Teck J
- Plaintiffs/Applicants: WHR and another (executors of the estate of LLT, deceased)
- Defendants/Respondents: WHT and others (five daughters of LLT were defendants; additional defendants listed)
- Legal Areas: Civil Procedure — Discovery of documents; Civil Procedure — Interrogatories
- Statutes Referenced: Evidence Act (Cap 97, 1997 Rev Ed) — s 128
- Other Rules/Legislation Referenced: Family Justice Rules 2014 (S 813/2014) — Rule 855(1); Rules of Court (Cap 322, R 5, 2014 Rev Ed) — Orders 24 r 6(2) and 26A r 1(2); Family Justice Rules — Rules 467(2) and 495(2)
- Cases Cited: Larke v Nugus [2000] WTLR 1033 (discussed via English Court of Appeal obiter); Geffen v Goodman Estate [1991] 2 SCR 353 (Canada); Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Alexander Learmonth et al gen eds) (Sweet & Maxwell, 21st Ed, 2018) (textbook reference)
- Judgment Length: 9 pages; 2,475 words
Summary
WHR and another v WHT and others concerned an application in a probate-related family dispute for non-party discovery and interrogatories directed at the solicitor who prepared a deceased’s will and codicil. The plaintiffs, who were the named executors, sought to prove the Will and Codicil. While most defendants accepted that the documents were legally executed, the first and second defendants did not. They applied for discovery of the solicitor’s confidential file materials, including drafts, communications between the testator and the solicitor, and documents assessing the testator’s mental capacity. They also sought interrogatories requiring the solicitor to disclose details of the instructions and the circumstances surrounding the preparation of the Will and Codicil.
The High Court (Family Division) dismissed the application. The central reasoning was that the communications between the testator and the solicitor were protected by solicitor-client privilege under s 128(1) of the Evidence Act. The defendants had not shown that any statutory exception under s 128(2) applied, nor that privilege had been waived. The Court also emphasised that the requested disclosure was not necessary at that early interlocutory stage, given the existence of an orderly procedural timetable for discovery and interrogatories, and the availability of cross-examination at trial.
What Were the Facts of This Case?
LLT was a businessman whose company dealt with luxury watches, which counsel for the plaintiffs suggested could cost up to about $1 million each. LLT died on 13 March 2009 at the age of 92, shortly after suffering a heart attack while on a business trip in Hong Kong. He was accompanied on the trip by his nurse and the first plaintiff, who was the younger of his two sons. The second plaintiff was the son of the first plaintiff. LLT also had five daughters, who were among the defendants in the action.
LLT executed a 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 to the will. The codicil was also prepared by Evelyn Ho on LLT’s instructions. Despite the existence of a substantial estate, no probate action was taken until 2015. The delay was significant in the narrative because it affected when the family became aware of the will and codicil.
It was only when the first and second defendants gave notice that they would be applying for a grant of letters of administration 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. The will and codicil were then read out by Mr Segeram to all of LLT’s children. Shortly thereafter, the first and second defendants issued a citation and filed an ex parte application for a grant ad colligenda bona. The plaintiffs commenced the present action soon after.
In the action, the plaintiffs sought to prove the Will and Codicil. Most defendants filed defences stating that they had no specific knowledge of the documents and, in substance, accepted that the will and codicil were legally executed. Only the first, second, and sixth defendants did not admit that the Will and Codicil were legally made and authentic. Importantly, none of these defendants pleaded that the Will or Codicil was not authentic or legally made in a detailed way; rather, they indicated an intention to insist on proof in solemn form of law and to cross-examine witnesses under the Family Justice Rules.
What Were the Key Legal Issues?
The principal legal issue was whether the first and second defendants could obtain, at an interlocutory stage, discovery and interrogatories against the solicitor who prepared the will and codicil, requiring disclosure of the solicitor’s confidential communications and internal file materials. This raised the question of how far solicitor-client privilege under s 128(1) of the Evidence Act would constrain discovery and interrogatories in probate-related proceedings.
A second issue concerned timing and procedural necessity. Even if the defendants could theoretically seek some information from the solicitor, the Court had to decide whether it was “necessary” to order non-party discovery and interrogatories at that early stage, particularly where general discovery and interrogatories would occur later and where the defendants could cross-examine the solicitor and other witnesses at trial.
How Did the Court Analyse the Issues?
The Court began by addressing the defendants’ reliance on authority suggesting that beneficiaries may seek information from will-preparing solicitors before trial. Counsel for the defendants relied on the passage from Williams, Mortimer and Sunnucks and on the English case of Larke v Nugus. The Court rejected the defendants’ attempt to treat Larke v Nugus as establishing a broad pre-trial disclosure entitlement. It explained that Larke v Nugus was primarily a costs decision, not a disclosure ruling, and that the English Court of Appeal’s comments were made in an obiter context. Further, the English Court of Appeal’s reasoning was tied to a practice note by the Law Society of England and Wales, which had later been revised and which left uncertainty about whether the so-called “Larke v Nugus obligations” applied in circumstances where the solicitor was a will preparer but not also an executor.
Crucially, the Court also distinguished the factual posture in Larke v Nugus. In that case, there had been objections on grounds including undue influence and lack of knowledge and approval, and the trial judge had found that the circumstances raised suspicion that the will might not have been made with the requisite knowledge and approval. By contrast, the Court observed that in the present case there appeared to be no serious dispute as to the validity of the Will and Codicil at the time of the application. This distinction mattered because it undermined any argument that the defendants needed immediate access to confidential solicitor materials to address a live and substantial validity challenge.
The Court then considered the Canadian case of Geffen v Goodman Estate. It noted that Geffen concerned admissibility of solicitor evidence in a probate context and that the Supreme Court of Canada held that solicitors may give evidence about the circumstances surrounding execution or contents of a will. However, the Court distinguished Geffen on the basis that it involved testimony at trial and did not directly address whether such evidence should be disclosed pre-trial through discovery or interrogatories. In other words, Geffen did not provide a clear basis for ordering pre-trial disclosure of privileged communications in the way the defendants sought here.
Having examined comparative authorities, the Court identified the only directly applicable legal provision as s 128(1) of the Evidence Act. That section provides that no advocate or solicitor shall, unless with the client’s express consent, disclose communications made in the course and for the purpose of professional employment, nor state the contents or condition of documents acquainted with in the course of such employment, nor disclose advice given to the client. The Court emphasised that the communications between LLT and Evelyn Ho were “clearly privileged” under s 128(1). The defendants did not argue that the exceptions in s 128(2) were engaged—namely, disclosure in furtherance of an illegal purpose, or disclosure of facts showing that a crime or fraud had been committed since the commencement of employment.
Privilege waiver was also addressed. The Court held that the plaintiffs had not expressly or impliedly waived privilege. The fact that some drafts and records relating to the will had already been disclosed did not amount to a waiver of all privileged communications and information contained in the solicitor’s confidential file. The Court further indicated that waiver is typically a matter to be determined in the context of trial evidence and cross-examination, rather than resolved prematurely through interlocutory discovery.
Finally, the Court dealt with the defendants’ procedural arguments. They relied on provisions in the Rules of Court and the Family Justice Rules that empower the Court to order discovery or interrogatories against a non-party where the documents are relevant, within the non-party’s possession, custody and power, and necessary either for disposing fairly of the matter or for saving costs. The Court found that the requested disclosure was not necessary at that early stage. It pointed to the existence of an “orderly schedule” of interlocutory proceedings to establish issues. Since pleadings had only just closed, there would be time for general discovery and interrogatories. If the defendants still needed non-party discovery, they could apply at the appropriate juncture. Alternatively, they could wait until trial to cross-examine Evelyn Ho and test the evidence supporting proof of the will.
In a policy-oriented observation, the Court warned against the broader implications of the defendants’ position. If beneficiaries could inspect confidential solicitor files whenever they wished to challenge a will, then any testator’s private intent and confidential communications could be exposed to scrutiny by a wide range of potential beneficiaries, including charities and other persons who might receive testamentary gifts. The Court indicated that such an outcome could not be what the law intends, particularly where solicitor-client privilege is designed to protect confidentiality and encourage candid communication.
What Was the Outcome?
The High Court dismissed Summons 148 of 2020. The first and second defendants were not granted the orders they sought for discovery of May & Co’s confidential documents relating to the will and codicil, nor were they permitted to obtain interrogatories compelling Evelyn Ho to disclose details of LLT’s instructions and the solicitor’s evaluation of mental capacity.
Practically, the decision meant that the defendants would have to pursue their challenge through the ordinary procedural framework: general discovery and interrogatories (as applicable), and cross-examination at trial when the solicitor’s evidence would be tested in open court, rather than through early non-party disclosure that would breach solicitor-client privilege.
Why Does This Case Matter?
This case is significant for practitioners because it clarifies the limits of pre-trial discovery and interrogatories in probate-related disputes where the information sought is protected by solicitor-client privilege. The Court’s approach underscores that s 128(1) of the Evidence Act is not merely evidential at trial; it can also operate as a substantive barrier to interlocutory disclosure against a solicitor who prepared a will.
For litigators, the decision provides a structured method for analysing such applications. First, courts will assess whether the communications are privileged on their face. Second, the applicant must identify a clear statutory exception under s 128(2) or demonstrate waiver. Third, even where relevance and possession are not in dispute, the Court will consider whether the disclosure is necessary at that stage, bearing in mind the procedural timetable and the availability of cross-examination at trial.
From a broader policy perspective, the judgment protects the confidentiality of testators’ communications with their solicitors. It also prevents a “fishing expedition” into solicitor files by beneficiaries who may wish to explore possible grounds of attack without having pleaded a concrete challenge that would justify early intrusion. Accordingly, the case is a useful reference point for both will challengers and executors/executors’ counsel when planning litigation strategy and anticipating objections grounded in privilege.
Legislation Referenced
- Evidence Act (Cap 97, 1997 Rev Ed), s 128(1) and s 128(2) — Professional communications and exceptions
- Family Justice Rules 2014 (S 813/2014) — Rule 855(1)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed) — Order 24 r 6(2); Order 26A r 1(2)
- Family Justice Rules 2014 — Rules 467(2) and 495(2)
Cases Cited
- Larke v Nugus [2000] WTLR 1033
- Geffen v Goodman Estate [1991] 2 SCR 353
Source Documents
This article analyses [2020] SGHCF 14 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.