The High Court has ordered that a plaintiff may inspect most documents relating to the preparation of wills by two deceased brothers, ruling that the documents were not protected by legal advice privilege. The court allowed two passages containing legal advice to be redacted.
The ruling concerned a discovery dispute in a claim by Michael Prendergast to property at Ballinamona, Clara, County Kilkenny. Prendergast says Patrick Dempsey and Patrick’s brother, John, promised that he would receive the farmland after the survivor of the two brothers died, in return for 25 years of work connected with farming it. Those assertions remain part of the underlying claim; the judgment did not decide entitlement to the property.
The defendant, Liam McLoughlin, is Patrick Dempsey’s nephew and personal representative. He denied the factual basis of Prendergast’s claim and argued that any claim was barred under the Civil Liability Act 1961 and the Statute of Limitations 1957.
In October 2007, the Master ordered discovery of documents including wills, drafts and written instructions. That order was upheld on appeal in November 2007. McLoughlin later listed nine documents concerning the brothers’ wills, including solicitor attendances and a draft will, but claimed privilege over them. Prendergast challenged that claim.
Mr Justice Clarke said instructions given to a solicitor simply to prepare a will would not, by that fact alone, be privileged. A document could be protected where its dominant purpose was to seek or provide legal advice, including advice expressly requested or required by the circumstances. Where a document mainly concerned legal assistance in preparing a will, a passage containing legal advice could still be redacted.
After reviewing copies of the disputed documents, the judge found that two passages recorded the seeking and giving of legal advice. He allowed those passages to be redacted. He rejected the privilege claim over the balance of the documents and directed that Prendergast be entitled to inspect them.
The decision resolved the privilege dispute over the discovered documents. It did not determine the contested facts, the limitation defences or the ultimate outcome of Prendergast’s claim.