Insights and inspiration
A Testament to Perseverence
06 May 2015
In cases concerning property settlement and financial adjustment on relationship breakdown, the courts insist upon full and frank disclosure. Sometimes, there is considerable argument about how far that duty of disclosure extends. Does it, for example, extend to disclosing the Will of a person still living, under which one of the parties may be a beneficiary? The answer to that question varies in accordance with circumstances. In a recent case, however, a question arose that was easier to answer: the wife was a party to financial proceedings. Her father had died, leaving a Will that provided a benefit to her.
The husband's lawyers issued a subpoena requiring the production of the Will, and documents associated with the estate. The wife got an affidavit from the estate solicitor setting out in detail a whole range of matters that might be reasonably expected to be important. Nonetheless, the husband's lawyers pressed the subpoena and wanted to see the documents. There was an objection from the wife's brothers who apparently were in charge of the estate.
They first of all objected that the estate documents could not be relevant, second that even if they were the lawyer's evidence was sufficient, and third there was an invasion of privacy.
The court disagreed with all of these propositions. Even if the lawyer's affidavit turned out to be accurate, the husband's lawyers should still be given the opportunity to inspect the foundation documents. The evidence sought by the subpoena was clearly relevant, and while there was necessarily some invasion of privacy, the interest of justice need to be balanced against the interests of privacy in each case and appropriate safeguards could be put in place to ensure that the information contained in the material went no further than it needed to.
The objectors to the subpoena took the case further, and asked for the court's leave to institute an appeal but were unsuccessful.
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