If you have concerns about a person's will, you may consider challenging the document in court. However, this can be a complicated, expensive and time-consuming process, especially if you have a limited chance of success. Pre-action disclosure enables a person considering a potential claim to request access to certain relevant documents before issuing formal court proceedings.

Pre-action disclosure can help potential claimants to assess whether they have a viable claim or to narrow down the issues in a dispute about a will or estate. Such an application can also improve your chances of success in any subsequent proceedings, as it will enable you to prepare properly. At the same time, it is worthwhile to consult with a solicitor during this process to make sure the relevant pre-action protocol is followed correctly.

Here, the experienced wills and probate solicitors at JMW outline what is involved in securing a pre-action disclosure order, how to evaluate certain documents to determine whether you have a real prospect of success, and the role of the claimant's solicitor in the process.

When Can Early Disclosure Help a Contentious Probate Case?

One of the most important steps you can take before commencing court proceedings is to request access to key documents through what is known as pre-action disclosure under the UK's Civil Procedure Rules. Early access to documents can prevent unnecessary legal proceedings and give you clarity about whether to proceed. For contentious probate matters, there are a number of scenarios in which this may be relevant, including if:

• Someone believes a will may be invalid (due to concerns like undue influence, lack of capacity, or improper execution) and wants to examine earlier wills, medical records or solicitor’s notes.
• A potential beneficiary or claimant suspects that estate assets are being concealed or misrepresented and wants access to financial records or statements.
• There is a dispute over the deceased's intentions, and someone seeks documents that might clarify their true wishes.

There can be benefits to both the claimant and any potential defendant to providing these documents. In particular, a party that is considering a claim may be dissuaded by viewing the relevant evidence, which can enable all parties to avoid anticipated proceedings and save costs (such as court fees). A possible claimant's solicitor may also advise them to resolve the matter informally after reviewing the evidence.

What Does Pre-Action Disclosure Involve?

A pre-action disclosure request allows you to ask for specific paperwork before formally taking a claim to court. In a wills and probate context, this might involve requesting:

• Copies of previous wills
• Solicitors’ notes from when the will was made
• The deceased’s medical records from the time the final will was made
• Financial statements showing what assets were owned

If you are concerned that someone's will is not valid, that someone exerted pressure on the person who made it, or that estate assets are missing or mismanaged, pre-action disclosure can help you to evaluate whether there is enough evidence to bring the matter to court. By reviewing these documents before commencing proceedings, you can make an informed decision and have a realistic understanding of what to expect from the process. In some cases, pre-action disclosure can encourage the other party to engage in early settlement discussions.

When the person or organisation holding the documents refuses to share them, it may be possible to apply for a court order that requires them to do so. The court will expect you to explain why the documents are relevant and how they could help resolve the dispute, and a solicitor can help you to make a strong argument.

Who Can Be Asked to Respond to a Pre-Action Disclosure Request?

Anyone who holds relevant documents may be asked for pre-action disclosure, but it is not a respondent's duty to provide the documents unless you make a reasonable argument in favour of your access. For example, some documents may be subject to legal professional privilege, which may restrict your access or force you to seek a court order to view them.

Common respondents include:

• The executor or administrator of the estate.
• The solicitor who drafted the will.
• Any financial institutions holding relevant accounts.
• Medical professionals or institutions holding relevant medical records.

Although some evidence will be covered by legal professional privilege (unless that privilege has been waived by the estate or the personal representative), you should be allowed access to most of these types of documents. This can help you to evaluate whether to challenge the will or commence the legal process.

How Do I Make a Pre-Action Disclosure Request?

A standard disclosure request can be made at any time before legal proceedings begin. Make the request in writing to the person or organisation that holds the documents, which may be the deceased's executor, solicitor, GP, hospital trust, or a financial institution. In your letter, explain:

• What documents you are requesting
• Why they are relevant to a potential claim
• How access to the documents might help avoid court proceedings

The documents you will need may differ according to the specific concerns you have about the will. For example, if you believe the deceased lacked the necessary mental capacity at the time they made their will, you might request their medical records from that time or the solicitor’s notes from the meeting when the will was signed.

If the person holding the documents refuses or ignores the request, the next step is to apply to the court for an order. Your solicitor will prepare a formal application to the court that sets out what documents are being requested and why. This application notice must also include evidence to show that:

• The respondent is likely to be a party in future proceedings
• The documents are relevant to the issues likely to arise
• Disclosure would help to save legal costs, promote a settlement of the issue, or help the case proceed fairly

It must be filed at court and served on the person or organisation that holds the documents. The court will then set a date to consider the application. If the judge agrees that the request meets the legal criteria, they can order the documents to be disclosed before any formal claim begins.

This approval is not guaranteed, as pre-action disclosure is not automatic - the court will consider whether your request is proportionate and justified. You must show that you reasonably require access to specific documents, and your solicitor can support you by gathering evidence and making an argument in your favour.

If you are considering challenging a will and believe that pre-action disclosure could turn up relevant evidence, speak to the team at JMW. Our expert wills and probate solicitors can give you more detail about the process, discuss your concerns and advise you when deciding whether or not to pursue a legal resolution. Our team will stand by your side throughout the proceedings if we believe that there are legitimate problems with the person's will, based on the evidence of pre-action disclosure.