Case Details
- Citation: [2020] SGHCF 14
- Title: WHR & Anor v WHT & 13 Ors
- Court: High Court (Family Division)
- Case Type: Family proceedings concerning proof of a will in solemn form; interlocutory application for discovery and interrogatories
- Suit No: Suit No 4 of 2019
- Summons No: Summons No 148 of 2020
- Date of Judgment: 2 October 2020
- Judgment Reserved: 23 September 2020; 30 September 2020
- Judge: Choo Han Teck J
- Plaintiffs/Applicants: WHR & Anor (executors of the estate of LLT, deceased)
- Defendants/Respondents: WHT & 13 Ors (children of LLT; some contest authenticity in solemn form)
- Legal Areas: Civil procedure; discovery of documents; interrogatories; evidence and legal professional privilege; probate/will proof procedure
- Statutes Referenced: Evidence Act (Cap 97, 1997 Rev Ed), s 128; Family Justice Rules 2014 (S 813/2014) (notably Rule 855(1)); Rules of Court (Cap 322, R 5, 2014 Rev Ed) (Orders 24 r 6(2), 26A r 1(2)); Family Justice Rules (notably Rules 467(2), 495(2))
- Cases Cited: [2020] SGHCF 14 (self-citation as reported); Re Moss; Larke v Nugus [2000] WTLR 1033; Geffen v Goodman Estate [1991] 2 SCR 353
- Judgment Length: 9 pages; 2,475 words
Summary
This High Court (Family Division) decision concerns an interlocutory application in a family probate dispute. The plaintiffs, who are the executors of the deceased LLT’s estate, commenced proceedings to prove LLT’s will and codicil in solemn form. While most of LLT’s children accepted the formal execution of the will and codicil, the first and second defendants took a further step: they sought discovery of documents held by the solicitors who prepared the will and codicil, and they sought interrogatories against the solicitor, Evelyn Ho, aimed at eliciting details of the instructions given by LLT and the solicitor’s evaluation of LLT’s mental capacity.
The court dismissed the application. The central reasoning was that the communications between LLT and Evelyn Ho, and related solicitor-held materials, were protected by legal professional privilege under s 128(1) of the Evidence Act. The defendants had not pleaded or established any basis for the statutory exceptions in s 128(2), nor had the plaintiffs waived privilege. In addition, the court considered that it was not necessary, at such an early interlocutory stage, to compel disclosure of privileged materials, given the 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 by a 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”) 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 first plaintiff only informed the family of LLT’s will after the first and second defendants gave notice that they intended to apply 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. After that, the first and second defendants issued a citation and then filed an ex parte application for a grant ad colligenda bona. The plaintiffs commenced the present action shortly thereafter, seeking to prove the will and codicil.
In the pleadings, most defendants filed defences stating that they had no specific knowledge of the will and codicil, and they accepted that the documents 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 advanced a specific claim that the will or codicil was not authentic or not legally made. Instead, they pleaded that they were insisting on proof in solemn form of law and intended to cross-examine the witnesses supporting the will and codicil pursuant to Rule 855(1) of the Family Justice Rules 2014.
Against that backdrop, the first and second defendants brought Summons 148 of 2020. They sought discovery of documents kept by May & Co relating to the will and codicil, including drafts of the will and codicil, communications between LLT and his solicitors, and documents evidencing May & Co’s evaluation of LLT’s mental capacity. In the same summons, they sought interrogatories against Evelyn Ho requiring her to provide details of LLT’s instructions and how LLT understood the process, including his intentions regarding why he sought advice on the codicil.
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 directed at the solicitor’s confidential file and communications with the testator. This required the court to consider the scope and application of legal professional privilege under s 128(1) of the Evidence Act, which generally prohibits disclosure of communications made for the purpose of professional employment by an advocate or solicitor.
A second issue was whether the statutory exceptions to privilege in s 128(2) were engaged. The defendants did not suggest that the communications were made in furtherance of any illegal purpose, nor did they allege that any crime or fraud had been committed since the commencement of the solicitor’s employment. The court therefore had to assess whether any waiver of privilege had occurred, whether express or implied, and whether the defendants’ procedural requests could override privilege.
Finally, the court had to decide whether, even if the documents were potentially relevant, it was “necessary” and appropriate to order non-party discovery and interrogatories against a firm of solicitors at that early stage, given the existence of an orderly interlocutory schedule and the availability of cross-examination at trial.
How Did the Court Analyse the Issues?
The court began by addressing the defendants’ reliance on English authorities and practice. Counsel for the first and second defendants argued that beneficiaries may, before a probate claim is commenced, request information from the solicitors who prepared a will. In support, counsel relied on Larke v Nugus [2000] WTLR 1033, which had been preceded by a 1979 case and later reported. The plaintiffs’ counsel, however, argued that Larke v Nugus did not establish the broad disclosure proposition advanced by the defendants.
The court agreed with the plaintiffs’ critique. It observed that Larke v Nugus was primarily a decision on costs rather than disclosure. In that case, the defendants objected on grounds of undue influence and lack of knowledge and approval. Before trial, the defendants had requested a statement from the solicitor about execution and surrounding circumstances, which was refused. At first instance, probate in solemn form was granted, but the judge made no order as to costs because the circumstances “raise[d] a suspicion” of want of knowledge and approval and the solicitor had failed to dispel that suspicion by providing the requested information. On appeal, the Court of Appeal upheld the costs approach and made obiter remarks about solicitors giving full and frank information to those who might attack the will.
Crucially, the court in the present case distinguished Larke v Nugus on multiple grounds. First, the English court’s remarks were tied to a specific context where there was a serious dispute about validity, including lack of knowledge and approval. Second, the English Court of Appeal’s reasoning relied on a Law Society practice note that had later 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. Third, and most importantly, the court noted that in the present case there appeared to be no serious dispute as to the validity of the will and codicil. The defendants’ position was essentially that they intended to cross-examine witnesses at trial rather than to plead a specific substantive challenge.
The court also considered Geffen v Goodman Estate [1991] 2 SCR 353, a Canadian decision concerning admissibility of a solicitor’s evidence in a probate challenge. The court accepted that Geffen held that solicitors may give evidence on circumstances surrounding execution or contents of a will in probate cases. However, the court distinguished Geffen because it concerned the solicitor’s testimony during trial, and it did not address whether such evidence should be disclosed before trial. The present case was not about admissibility of evidence at trial; it was about whether privileged solicitor communications and file materials must be disclosed at an interlocutory stage.
Having found the foreign authorities unhelpful for the specific procedural relief sought, the court turned to the directly applicable law: s 128(1) of the Evidence Act. The court set out the statutory rule 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 with which the solicitor became acquainted in that course.
The court held 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) applied. Nor did the plaintiffs’ conduct amount to waiver. The court rejected the defendants’ implied waiver argument based on the fact that the plaintiffs had disclosed some drafts and records relating to the will. Partial disclosure of some materials did not automatically waive privilege over all privileged documents and information sought.
In addition, the court emphasised that waiver of privilege is a matter best addressed at trial, particularly where counsel is under cross-examination. This reflects a practical evidential approach: privilege questions may depend on context, the scope of what has been disclosed, and the precise nature of the communications. The court therefore did not treat the interlocutory stage as the appropriate forum to unravel privilege beyond what was necessary to decide the discovery and interrogatories application.
On the procedural side, the court found the defendants’ reliance on the Rules of Court and the Family Justice Rules unhelpful. Those provisions concern the court’s jurisdiction to order discovery and interrogatories against a non-party where the documents and information sought 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 concluded that it was not necessary, at that early stage, for the solicitors to divulge privileged documents and information. It pointed to the existence of an orderly schedule of interlocutory proceedings, noting that pleadings had only just closed and that there would be time for general discovery and interrogatories.
The court further reasoned that if the defendants needed the documents later, they could apply for non-party discovery or non-party interrogatories at the appropriate juncture. They could also wait until trial to cross-examine the relevant witnesses, including Evelyn Ho. At the present stage, there was “no basis” for compelling a firm of solicitors to disclose privileged materials.
Finally, the court expressed a policy concern. If the defendants’ approach were accepted, beneficiaries—including charities and other potential recipients—could apply to inspect the confidential files of a testator’s solicitors. The court stated that it could not be the intention of any testator to invite such scrutiny of private testamentary intent and solicitor communications. This underscores the protective function of legal professional privilege: it exists not merely for the benefit of the solicitor or the client, but to preserve confidentiality in the administration of justice and to encourage candid communications.
What Was the Outcome?
The court dismissed Summons 148 of 2020. The first and second defendants were not granted discovery of the solicitors’ privileged documents, including drafts, communications, and mental capacity evaluation materials, and they were not permitted to obtain interrogatories against Evelyn Ho seeking details of LLT’s instructions and intentions at that stage.
Practically, the decision meant that the defendants would have to pursue their challenge through the ordinary probate/will proof process, including cross-examination of witnesses at trial, and through any properly timed interlocutory applications for non-party discovery if and when the procedural and evidential basis became clearer.
Why Does This Case Matter?
This case is significant for practitioners because it reinforces the strength of legal professional privilege in the context of will disputes in Singapore. While probate proceedings often involve scrutiny of execution formalities and the circumstances surrounding instructions, the court made clear that privileged solicitor communications and confidential file materials are not automatically disclosable simply because a beneficiary wishes to test authenticity or knowledge and approval.
For lawyers advising executors or beneficiaries, the decision provides a clear procedural and evidential roadmap. If a party seeks discovery or interrogatories directed at a solicitor’s confidential materials, it must confront s 128(1) directly. Unless the party can point to a pleaded and supportable basis for the s 128(2) exceptions, or unless privilege is properly waived, the court is likely to refuse early disclosure. The court’s approach also suggests that “relevance” alone is insufficient; the court will consider necessity and timing under the applicable rules governing non-party discovery and interrogatories.
From a litigation strategy perspective, the judgment encourages parties to focus on trial-based mechanisms—particularly cross-examination—rather than attempting to obtain privileged documents at the interlocutory stage. It also warns against over-reliance on foreign authorities that may be context-specific, especially where those authorities are tied to serious disputes about validity and to particular professional practice frameworks.
Legislation Referenced
- Evidence Act (Cap 97, 1997 Rev Ed), s 128(1) and s 128(2) (Professional communications; privilege and exceptions) [CDN] [SSO]
- Family Justice Rules 2014 (S 813/2014), Rule 855(1) (cross-examination in solemn form context)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 24 r 6(2) and Order 26A r 1(2) (non-party discovery/interrogatories framework)
- Family Justice Rules 2014 (S 813/2014), Rules 467(2) and 495(2) (non-party discovery/interrogatories framework)
Cases Cited
- Larke v Nugus [2000] WTLR 1033
- Re Moss (referenced in connection with Larke v Nugus)
- 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.