THE HIGH COURT
			1997 No. 104 SP 
IN THE MATTER OF THE ESTATE OF JOHN J. TREACY DECEASED LATE OF SCURLOCK, 2 SUNNYHILL PARK, LOUGHLINSTOWN, CO. DUBLIN 
BETWEEN
ALISON J. CRAWFORD AND NIALL HOGAN
			PLAINTIFFS
AND
PATRICIA TREACY, RICHARD V. LOVEGROVE AND MICHAEL V. O'MAHONY
			DEFENDANTS

JUDGMENT delivered by O' Sullivan J. on the 4th November, 1998

	This is a motion brought by the first Defendant challenging a claim of privilege made by the Plaintiffs in their Affidavit sworn by the first Plaintiff as executors of the Estate of John J. Treacy (the Deceased) who died on the 5th April, 1996 having made his last will and testament on the 25th January, 1995.  
	The first Defendant claims to be the lawful wife of the deceased and is described as his wife in his said will.  To understand the issues arising on this motion it is necessary to set out briefly the marital history between the first Defendant and the deceased.  
	They were married on the 19th August, 1958 in the Church of Ireland in this country; the following year the first named Defendant left the deceased for England and was divorced from him in that country on the 7th August, 1963.  In January of 1959 she had procured a church annulment.  On the 27th August, 1963 she married one Mr. Szuch in England from whom she was divorced some eleven years later.  In 1975 she returned to Ireland and recommenced to live with the deceased as his wife.  She had maintained contact with him over the years.  There is dispute between the parties as to the degree of cohabitation between the first defendant and the deceased in the years which followed.  It appears that the first Defendant, the deceased, a previous daughter of the first Defendant with Mr. Szuch and her daughter by the deceased born on the 31st March, 1976 (Tara and Sarah Jane respectively) resided as a family until the 5th November, 1981 when the first Defendant and the deceased entered into a separation agreement when they expressly recited that they had received advice that they remained always married and in which they each resigned their legal rights under Part IX of the Succession Act, 1965.
	Under this agreement a house was purchased the legal interest of which is vested in the second and third named Defendants (who have no direct interest in this particular motion).  For the next nine years or so the first Defendant was in regular contact with the deceased and in 1990 again resumed cohabitation with him as his wife.  They lived together in a new house bought by the deceased in 1990 and were living together when he died in 1996.  
	By his will dated the 25th January, 1995 the deceased left a legacy of £50,000 "to my wife".  I am told his estate would be worth somewhere in the order of
£9 million so that the first Defendant would be entitled to a vastly greater share of the deceased's estate under the Succession Act, 1995 if she was indeed truly his wife.  
	The claim for privilege made by the first Plaintiff in her initial Affidavit of Discovery was made in a form which would suggest that it was based on the ordinary principles relating to litigation as distinct from legal professional advice generally.  In a subsequent Affidavit, however, this Deponent said:-

	"The documents in respect of which privilege is claimed are documents relating to the preparation of the deceased's last will and testament dated the 25th day of January, 1995. The documents were prepared in contemplation of proceedings being necessary in relation to the will and Estate of the deceased.  

	The Deceased envisaged at the time he was making his will that Patricia Treacy, the first named Defendant herein, would seek to assert entitlements as a spouse pursuant to the provisions of Part IX of the Succession Act, 1965."
	
	Counsel for the Plaintiffs have made it clear on the hearing of this Motion, however, that the claim of privilege rests not only upon the basis of documents brought into existence in contemplation of litigation, but also upon the basis that it was legal professional advice obtained not necessarily in contemplation of litigation.  
	Counsel for both parties addressed me on the ordinary principles of discovery which are clearly established.  I have been requested to consider the documents in dispute and I have done so.  
	Counsel for the first Defendant has submitted, furthermore, that in the event that I conclude that some (or all) of the disputed documents are entitled to a claim of privilege on either of the two bases submitted, then I should proceed further to consider the following two submissions to the effect that in the present case privilege should not apply to such documents by way of exception to the general rule.  The two exceptions submitted are as follows:-

(A)	This is not an action inter partes.  It is an application by the executors and trustees of the will of the deceased who are seeking directions of the Court.  The Court's primary concern must, therefore, be the ascertainment of the truth rather than the protection of the interests of one of the parties.  The Court will, accordingly, set aside the usual claim of privilege and indeed has done so in two case to which I have been referred; 
(B)	Secondly, it is submitted that the Court will not allow a claim of privilege over documents which are tainted with moral turpitude in the sense that they contain advice given to the deceased to enable him to defeat the legal entitlement of the first Defendant under Part IX of the Succession Act, 1965.

	In accordance with the foregoing submissions I have approached the matter in two steps.  First, I read the documents in dispute applying the usual principles.  Then, because some of the documents are privileged under those principles, I went on to consider the submissions in relation to exceptions to the general rule.  
	I now set out my findings.
	There are a total of eleven documents and, having read them and applying the ordinary rules I hold as follows:

DATE	DESCRIPTION	DECISION	
31/5/1993

30/6/1993

26/8/1993

17/11/1993

13/12/1993

17/12/1993

14/2/1994 

25/8/1994

6/9/1994

28/11/1994

undated
	Letter Ernst & Young to Joynt & Crawford Solicitors re: tax with report

Letter from Solicitors to deceased 

Letter from Solicitors to Senior Counsel seeking opinion

Letter from Senior Counsel to Solicitors with opinion

Letter from Solicitors to Senior Counsel

Letter from Solicitor to deceased re: Counsel's advice 

Letter from Senior Counsel to Solicitors

Attendance document re: meeting with tax advisers

Letter from Solicitors to deceased seeking instructions (both manuscript and typed versions)
1
Attendance docket on deceased

Draft memorandum 
	To be disclosed

To be disclosed (except paragraph 3).

privileged 

Privileged

Privileged

Privileged

Privileged

To be disclosed

To be disclosed

To be disclosed

To be disclosed

	The file handed up to me contained a number of other documents comprising assorted memoranda.  All documents on the file are to be disclosed except the ones specifically referred to as privileged in the foregoing.
	In light of the foregoing I must now consider whether the privileged documents should be disclosed on either of the grounds submitted by Counsel for the first Defendant.
	The first of these relates to the nature of the proceedings themselves.  They are not, it is submitted, truly inter partes at all but are simply proceedings brought by the executors of the will of the deceased for the directions of the Court.  It would be anomalous, it is said, if a privilege were to apply so that the Plaintiffs were to be possessed of more information than the Court itself.  Furthermore the primary concern of the Court in such proceedings is the ascertainment of the truth and this requirement is paramount over such interest of the deceased as may be protected by the claim of privilege.  I am referred to two cases the first of which is Russell -v- Jackson (9: HARE: 387).  The Defendants in that case had been left the residue of his estate by one Joseph Russell as a testimony of his esteem for them and as compensation to them for their trouble as his executors.  The proceedings were brought by his next-of-kin alleging that the gift was really given on a secret trust for the founding of a socialist school at Birmingham.  A motion was brought on the part of the Defendants to suppress certain depositions of the Solicitor by whom the will was prepared to the effect that the residue was given to the Defendants to hold on a secret trust.  It was held that the communication should not be protected and in arriving at that conclusion the vice-chancellor did indeed make a distinction between cases involving conflict between the parties and cases of testamentary disposition.  He went on, however, to say that he thought the existence of the illegal purpose would prevent any privilege attaching to the communication.  
	The second case to which I have been referred is Re: Fuld Deceased (1965 Official Law Reports: 405)
	Fuld was a case concerning the execution of a will.  The question was whether copies of statements given by an attesting witness to solicitors acting for an executor of the will should be privileged so that the witness could not be questioned as to its contents.  In dealing with this point Scarman J. (as he then was) said:-

	"It seems to me, therefore, that there can be in a probate case an apparent clash or conflict between the right of the court to know everything that its witness knows or has said about execution, and the right of a party to claim privilege for communications passing between that witness and himself or his Solicitor for the purpose of collecting evidence for the hearing.  If there be such a conflict, I have no doubt that it must be resolved in favour of the Court.  Strictly, however, there is no conflict because the Court in its inquisitorial capacity is seeking the truth as to execution.  The parties upon the issue of execution are assisting the Court in its search for the truth.  It seems to me, therefore, that if the Court comes to the conclusion that the truth can only be discovered by asking a witness to produce earlier statements that he may have made in writing concerning execution, then the Court is entitled to insist on seeing those statements, and I so rule."

	In relation to these two cases-the only cases which diligent enquiry on behalf of the first Defendant has yielded-it seems to me that justice clearly required production of the documents or evidence.  In the first case there was a question not only of a secret trust but a breach of the law.  In the second the Court was concerned with establishing a central fact in relation to execution of the Will.  
	In the present case, the documents sought by the first Defendant relate to advice.  The facts upon which that advice was given will be known to the Court independently from incidental recitals in the documents passing between solicitor, Counsel and the deceased and having considered the documents I do not think that "The truth can only discovered" by ordering disclosure of these documents.  The outcome of the application for directions would not, in my view, be dependent upon or influenced by production of these documents to the Court.  The Plaintiffs in the special summons are seeking legal guidance from the Court and I do not think that the interests of justice necessitates disclosure of the privileged documents.
	Secondly, Counsel for the first Defendant submits that if I came to the conclusion that the documents were tainted with moral turpitude (and in this context there is a sufficiency of iniquity to qualify under this exception if the purpose of the documents was to enable the deceased to defeat the legal entitlement of the first Defendant) then I should direct production of the documents.
	I have considered the documents which are privileged under the ordinary rules and conclude that there was no intent or purpose of seeking advice to set aside the legal entitlement of the first Defendant.
	In light of the foregoing I must direct production only of those documents which I have identified in the earlier part of this Judgment and uphold the claim for privilege of the remainder.