Case Details
- Citation: [2020] SGHCF 14
- Title: WHR & Anor v WHT & 13 Ors
- Court: High Court (Family Division)
- Suit No: 4 of 2019
- Summons No: 148 of 2020
- Date of Judgment: 2 October 2020
- Hearing Dates: 23 September 2020; 30 September 2020
- Judgment Reserved: Yes
- Judge: Choo Han Teck J
- Plaintiffs/Applicants: WHR & Anor (executors of the estate of LLT, deceased)
- Defendants/Respondents: WHT & 13 Ors
- Procedural Posture: Application for discovery of documents and interrogatories against the testator’s solicitors and solicitor-witness (Summons 148 of 2020)
- Legal Area(s): Civil Procedure; Discovery of documents; Interrogatories; Privilege; Family proceedings (probate/“proving in solemn form” context)
- Statutes Referenced: Evidence Act (Cap 97, 1997 Rev Ed), s 128
- Other Rules 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: [2020] SGHCF 14 (as reported); Larke v Nugus [2000] WTLR 1033; Geffen v Goodman Estate [1991] 2 SCR 353; Re Moss (mentioned in counsel’s authorities)
- Judgment Length: 9 pages, 2,475 words
Summary
This High Court (Family Division) decision concerns an application in a probate-related dispute where the executors sought to prove a will and codicil, and certain beneficiaries sought early discovery and interrogatories directed at the testator’s solicitors. The first and second defendants did not mount a pleaded case that the will and codicil were not legally made or authentic; rather, they indicated they would “prove in solemn form” and cross-examine witnesses. Despite this, they applied for discovery of the solicitors’ confidential file materials, including drafts, communications, and assessments of the testator’s mental capacity, and sought interrogatories compelling the solicitor who prepared the will to disclose details of the instructions and the testator’s understanding and intentions.
The court refused the application. Central to the reasoning was the operation of solicitor-client privilege under s 128(1) of the Evidence Act. The communications between the deceased and the solicitor, and the solicitor’s advice and professional communications, were held to be privileged. The court also rejected the defendants’ reliance on procedural rules permitting non-party discovery/interrogatories, emphasising that such disclosure was not necessary at an early stage and that the orderly interlocutory schedule and trial process would adequately protect the defendants’ ability to challenge the will through cross-examination.
What Were the Facts of This Case?
LLT was a businessman whose company dealt with luxury watches, which—according to the plaintiffs—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 that trip by his nurse and by the first plaintiff, who was one of his two sons. The second plaintiff is the son of the first plaintiff. LLT also had five daughters, who are among the defendants in the action.
LLT made a will in 1999 with the assistance of his solicitor, Ms Ho Soo May Evelyn (“Evelyn Ho”). On 6 August 2008, LLT appended a codicil to the will. The codicil was also prepared by Evelyn Ho on LLT’s instructions. Although LLT’s estate was substantial, no probate action was taken until 2015. The first plaintiff only informed the family of the existence of the will when the first and second defendants gave notice that they would be applying for a grant of letters of administration.
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 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. Many defendants filed defences stating they had no specific knowledge of the will and codicil and, in substance, accepted that the instruments 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 three defendants pleaded a specific claim that the will or codicil was not authentic or legally made. Instead, they pleaded that they intended to insist on proof in solemn form of law and to cross-examine witnesses under Rule 855(1) of the Family Justice Rules 2014.
What Were the Key Legal Issues?
The principal issue was whether the first and second defendants were entitled, at an early interlocutory stage, to obtain discovery of documents from the testator’s solicitors and to obtain interrogatories against Evelyn Ho. The defendants sought access to the solicitors’ confidential materials relating to the will and codicil, including drafts, communications between LLT and his solicitors, and documents evaluating LLT’s mental capacity.
A closely related issue was whether such disclosure would breach solicitor-client privilege. The court had to determine whether the communications and advice exchanged between LLT and Evelyn Ho were protected by s 128(1) of the Evidence Act, and whether any exception under s 128(2) could apply. This required the court to consider whether the defendants could circumvent privilege through procedural discovery and interrogatories, particularly where the defendants had not pleaded a serious dispute such as undue influence or fraud.
Finally, the court had to consider whether the procedural rules invoked by the defendants—particularly those relating to non-party discovery/interrogatories—could justify the requested disclosure, and whether it was “necessary either for disposing fairly of the matter or for saving costs” at that stage of the proceedings.
How Did the Court Analyse the Issues?
The court began by addressing the authorities relied upon by counsel for the first and second defendants. Counsel referred to a passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate and argued that the English case of Larke v Nugus supported a proposition that beneficiaries may, before a probate claim is commenced, request information from the solicitors who prepared a will. The court rejected that reading of Larke v Nugus. It emphasised that Larke v Nugus was primarily concerned with costs and the effect of the solicitor’s failure to dispel suspicion regarding knowledge and approval, rather than establishing a general pre-action disclosure entitlement.
The court also noted that the English Court of Appeal’s remarks in Larke v Nugus were tied to a specific context: a serious dispute and a suspicion of want of knowledge and approval. The court further observed that the practice note referenced in Larke v Nugus had been revised, and it was unclear whether the so-called “Larke v Nugus obligations” applied where the solicitor was a will preparer but not also an executor. Most importantly, the court found that, unlike Larke v Nugus, there appeared to be no serious dispute as to the validity of the will and codicil in the present case.
The defendants also relied on Geffen v Goodman Estate, a Canadian decision concerning admissibility of solicitor evidence in probate proceedings. The court distinguished Geffen on the basis that it involved a specific allegation of undue influence and that the solicitor’s testimony was heard at trial. The court did not treat Geffen as authority for whether solicitor communications should be disclosed before trial through discovery or interrogatories.
Having narrowed the relevance of foreign authorities, the court identified the only directly applicable legal provision: s 128(1) of the Evidence Act. That section provides that no advocate or solicitor shall disclose communications made in the course and for the purpose of professional employment, or state the contents or condition of documents with which the solicitor became acquainted in that course. The court treated these communications as clearly privileged. It reasoned that the communications between LLT and Evelyn Ho were made in the course and for the purpose of Evelyn Ho’s employment as a solicitor, and therefore fell squarely within the protection of s 128(1).
The court then considered whether any exception under s 128(2) could remove the privilege. The defendants did not suggest that the exceptions—such as communications made in furtherance of an illegal purpose or facts observed showing crime or fraud—were made out. Nor did the court find any conduct by the plaintiffs amounting to express or implied waiver of privilege. The court rejected the argument that disclosure of some drafts and records by the plaintiffs necessarily waived privilege over all privileged documents and information sought by the defendants. It characterised waiver as a matter that should be addressed at trial, particularly when counsel is under cross-examination.
On the procedural side, the court addressed the defendants’ reliance on Orders 24 r 6(2) and 26A r 1(2) of the Rules of Court and Rules 467(2) and 495(2) of the Family Justice Rules. These provisions concern the court’s jurisdiction to order discovery and interrogatories against a non-party, subject to conditions including relevance, possession/custody/power, and necessity for disposing fairly or saving costs. The court held that the requested disclosure was not necessary at that early stage. It stressed that the interlocutory process is designed to establish issues in an orderly way, and that pleadings had just closed. There would be a time for general discovery and interrogatories, and if the documents sought were not disclosed, the defendants could apply for non-party discovery or non-party interrogatories at the appropriate juncture.
Crucially, the court also emphasised that the defendants could wait until trial to cross-examine the relevant witnesses, including Evelyn Ho. At the present stage, there was “no basis” for requiring a firm of solicitors to divulge documents and information that were evidently privileged under s 128(1). The court warned against the broader implications of the defendants’ position: if beneficiaries could obtain inspection of confidential solicitor files whenever they wished to challenge a will, it would undermine the confidentiality of private testamentary communications and the testator’s ability to seek legal advice in confidence.
What Was the Outcome?
The court dismissed the first and second defendants’ Summons 148 of 2020. The practical effect was that the defendants were not granted early discovery of the solicitors’ confidential file materials and were not permitted to compel interrogatories directed at Evelyn Ho at that stage.
The decision preserved the confidentiality of solicitor-client communications and required the defendants to pursue their challenge through the ordinary procedural pathway—namely, general discovery (if applicable), and cross-examination of witnesses at trial when the will and codicil were to be proved in solemn form.
Why Does This Case Matter?
This case is significant for practitioners because it underscores the strength of solicitor-client privilege in probate-related disputes within Singapore’s legal framework. Section 128(1) of the Evidence Act operates as a robust barrier against disclosure of communications and advice exchanged between a testator and the solicitor who prepared the will, absent a clearly pleaded and legally supported basis for an exception or waiver.
From a litigation strategy perspective, the decision clarifies that defendants who intend to challenge a will are not entitled to “pre-trial fishing” through discovery and interrogatories aimed at confidential solicitor files, particularly where the dispute is not framed as involving serious allegations such as undue influence, fraud, or other matters that might engage s 128(2). The court’s insistence on an orderly interlocutory schedule also signals that interlocutory applications should be proportionate and tied to necessity for fair disposal or cost-saving.
For executors and will preparers, the case provides reassurance that disclosing some documents in the course of proving a will does not automatically waive privilege over the entire solicitor file. For beneficiaries and their counsel, it indicates that the proper route to test the will’s validity is through the structured probate process and trial evidence, including cross-examination of the solicitor and other witnesses, rather than through early compulsory disclosure of privileged communications.
Legislation Referenced
- Evidence Act (Cap 97, 1997 Rev Ed), s 128 (Professional communications; solicitor-client privilege and exceptions)
- Family Justice Rules 2014 (S 813/2014), Rule 855(1) (proof in solemn form and cross-examination framework)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 24 r 6(2) (non-party discovery jurisdiction)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 26A r 1(2) (non-party interrogatories jurisdiction)
- Family Justice Rules 2014 (S 813/2014), Rule 467(2) (non-party discovery jurisdiction)
- Family Justice Rules 2014 (S 813/2014), Rule 495(2) (non-party interrogatories jurisdiction)
Cases Cited
- Larke v Nugus [2000] WTLR 1033
- Re Moss (mentioned in counsel’s authorities)
- 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.