In the recent case of Gardiner v Tabet, the High Court made a rare decision to order a lay draftsman and the witnesses to a Will to give full disclosure of their communications with the testator and the main beneficiary of the Will.

The testator, Eric Tabet, had been admitted to hospital with an inoperable brain tumour. Whilst in hospital, an old friend of the testator, Mary-Ann Gardiner, visited and gave the testator’s friend, Jamal Hammoud, an email which supposedly confirmed Eric’s wishes for his Will. Eric asked Jamal to draw up a Will passing his entire estate to Mary-Ann.

The siblings of Eric challenged the validity of the Will, alleging that the signature was not authentic and that in any event Eric had lacked capacity and/or had not known and approved its contents. The siblings sought disclosure from Jamal, and the other witness, of correspondence and documents that might assist their case. The respondents refused to co-operate and therefore an application was made for third-party disclosure.

The Court considered the relevance test in CPR 31.17 and found that the correspondence and documents sought did satisfy the relevance test, because they were relevant both to the deceased’s testamentary intentions and the issue of capacity. The Court, therefore, ordered Jamal and the other witness to disclose the correspondence, as well as any draft wills or other documents bearing the deceased’s signature.

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Case citation: Gardiner v Tabet (2020) EWHC 1471 Ch