Aron Liebenthal v Shulam Liebenthal & Ors

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1. This is my judgment following the hearing of an application for third party disclosure made within a probate claim.

2. The probate claim concerns the estate of Chaye Liebenthal ( the Deceased ) who died on 18 January 2023. The claimant, Aron Liebenthal, and the first defendant, Shulam Liebenthal, are the sons of the Deceased. The second defendant, Channa Engel, and the third defendant, Sara Marcovitz are the daughters of the Deceased

3. The claimant seeks to propound the will of the Deceased dated 29 March 2005 ( the 2005 Will ). The first and third defendants counterclaim to propound the validity as a testamentary document of a declaration dated 3 November 2017 ( the 2017 Declaration ) which purports to be a codicil having effect to revive a will executed by the Deceased on 24 May 1990 ( the 1990 Will ) and seek to set aside the 2005 Will on the grounds of lack of comprehension or want of knowledge and approval of its content and by reason of the Deceased not acting of her own free and independent will. The terms of the 2005 Will are more favourable to the claimant than the terms of the 1990 Will, which are to the benefit of the defendants.

4. The claimant does not dispute the initial validity of the 1990 Will but says it was revoked by, at latest, the 2005 Will. The claimant disputes the substantial validity of the 2017 Declaration on the grounds of lack of capacity and want of knowledge and approval, requires formal proof of its due execution and challenges its effect as a codicil as a matter of construction; the first and third defendants dispute all these points.

5. The first and third defendants’ application dated 5 August 2025 asks: “Pursuant to para 1.8 of PD57AD and CPR 31.17, for third party disclosure by the Beth Din (Union of Orthodox Hebrew Congregations Beis Din), requiring the production of the complete file(s) held by the Beth Din relating to the Deceased, Chaje Liebenthal, and/or the parties to this action, in so far as they relate to the matters pleaded at paragraph 19 of the Defence and Counterclaim of the First and Third Defendants and para 16 of the Reply.”

6. The application is supported by the witness statement of the first and third defendants’ solicitor Izzie Parker, of BBS Law Ltd, dated 5 August 2025. She explains that the Union of Orthodox Hebrew Congregations Beis Din ( the Beth Din ) holds a file or files relating to the Deceased which it has agreed to disclose subject to all parties consenting or the court making an order. She says that the file is relevant to matters pleaded in paragraph 19 of the Defence and Counterclaim as it contains contemporaneous evidence regarding a dispute between the Deceased and the claimant that arose after the Deceased’s husband’s death and the resulting arbitration proceedings before the Beth Din, and the award made in the Deceased’s favour by the Beth Din in the period before the making of the 1990 Will. The Beth Din’s exhibited email of 3 April 2024 explains that the documents will be provided at a meeting at its offices and any document provided to one party will be provided to the other.

7. The claimant’s solicitor Digby Martin Fletcher of Armstrong Legal Limited has signed and filed a witness statement dated 29 October 2025. His evidence explains that he was the appointed executor under the 2005 Will but has subsequently renounced. He exhibits the material he has found in his firm’s old files relevant to the dispute.

8. No originals or complete copies of wills of the Deceased from any date between 1990 and 2005 have been produced, but the material exhibited by Mr Fletcher indicates that she may have made wills in July 1999 and February 2001. It also appears that in this period the Deceased discussed with representatives of Armstrong Legal (then Armstrong & Co) the possibility of giving the claimant a right of acquisition of her beneficial share or interest in her home and the manner in which the inheritance tax would fall as between her children. Paragraph 19 of the Defence and Counterclaim

9. The opening words of paragraph 19 of the Defence explain that in 2017 the Deceased had reasons to revive the 1990 Will and the paragraph goes on to give particulars in support of that contention in seven subparagraphs: (i) subparagraphs (i), (ii), (iii) and (vii) plead matters to which the documents in the Beth Din files could have no relevance as they post-date the Award of the Beth Din; (ii) subparagraphs (iv) and (v) raise the following matters said to be good reasons for the Deceased’s deciding to disinherit the claimant in the 1990 Will: (a) an allegation that the claimant refused to make provision for the Deceased from the family business after his father’s death or to provide income for her and kept all the monies himself; (b) that this dispute about the business monies led to the commencement by the Deceased of arbitration proceedings in the Beth Din which in due course made an award in favour of the Deceased; and (c) the claimant refused to recognise the decision of the Beth Din. (iii) sub-paragraph (vi) contends that the Deceased executed the 1990 Will as a consequence of this dispute.

10. By paragraphs 16(2) and (3) of his Reply and Defence to Counterclaim the claimant admits running the former family business, he says with the consent of the Deceased. He pleads that the business was liquidated and the claimant declared bankrupt. He admits that the Deceased commenced proceedings in the Beth Din and that an award was made in the Deceased’s favour, subject to those admissions he pleads that he is unable to admit or deny the allegations in paragraph 19. Legal Principles

11. Section II of PD 57AD applies to orders for disclosure against a person not a party and the principles to be applied are set out in CPR Part 31 and Practice Direction 31A. CPR r. 31.17 provides: (3) The court may make an order under this rule only where— (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

12. The following propositions were not in dispute: (i) As to paragraph (3)(a): (a) documents that go merely to background or which might lead to a train of enquiry fall outside CPR r.31.17. (b) the court has no power to make an order in respect of a class of documents if it includes documents that do not satisfy the condition that are “likely to support the case for the applicant or adversely affect the case of one of the other parties” ( the threshold condition ); (c) the order cannot impose on the non-party the task of identifying those documents that do, and those that do not, meet the threshold condition; (ii) As to paragraph (b) (which only falls to be considered if paragraph (a) has been satisfied): (a) Non-party disclosure ought not to be ordered if it is not necessary to do so; (b) Disclosure of documents that appear to provide merely background or material that might be useful in cross-examination will not be ordered; and (c) Disclosure can be ordered only if it will dispose fairly of the claim or save costs; (iii) As to the Court’s discretion, disclosure from non-parties is the exception rather than the rule. First and Third Defendants’ Submissions

13. Mr Sinai submits that the Beth Din files will include information relevant to an understanding of the Deceased’s testamentary wishes and her relationship with the claimant. In particular that information will include the nature of her complaints about his conduct of the family business. He says that this material will support the first and third defendants’ case.

14. Mr Sinai points out that the claimant pleads he had the Deceased’s consent to take control of the family business and says that this plea is undermined by the Deceased’s reason for starting the arbitration which is that there was no such consent.

15. He says that the documents will show whose version of events was accepted by the Beth Din, what award was made to the Deceased and whether the claimant complied with the award. 16 He says that the claimant has not filed any evidence explaining why he resists the disclosure sought.

17. He says that the claimant requires the first and third defendants to prove: (i) that there was good reason for the Deceased to disinherit the claimant by the 1990 Will; (ii) the validity of the 1990 Will; (iii) the validity of the codicil inter alia on the basis that the Deceased did not know and approve the content of the 1990 Will.

18. Mr Sinai’s position was that the documents in the Beth Din files are key to understanding: (i) the testamentary wishes of the Deceased when executing the 1990 Will; (ii) any reasons why she would want to depart from those wishes by reinstating a substantial gift to the claimant at the expense of her daughters in the 2005 Will; (iii) the seriousness of the dispute referred to the Beth Din and the claimant’s compliance or otherwise with the award; (iv) whether there was good reason for the Deceased to remember and wish to revert to the 1990 Will when executing the codicil. Claimant’s Submissions

19. Mr Sagar says that to succeed in their application, the first and third defendants must show: (i) that the Beth Din files (or some documents within them) are likely to support their case or adversely affect the claimant’s case; and (ii) that disclosure is necessary in order to dispose fairly of the claim or to save costs. Even if those criteria are met, the Court must consider whether, as a matter of discretion, disclosure ought to be ordered, and to what extent.

20. He says that so far as the first and third defendant’s case on the validity of the 2005 Will is concerned: (i) the 2005 Will is rational on its face: it appoints an executor and trustee, makes specific gifts of chattels, divides real property (with substitution provisions), gifts residue and confers powers on the executor and trustee; (ii) there is no allegation by the first and third defendants that the 2005 Will was not duly executed. It seems clear that the Deceased’s signature was witnessed by employees of Spence & Horne, a firm of solicitors with an address in Hackney; (iii) there is no allegation by the first and third defendants that the Deceased lacked testamentary capacity at the time that she executed the 2005 Will. Due execution and the rational appearance of the 2005 Will mean capacity is to be presumed.

21. Mr Sagar says that the case of the first and third defendants appears to be: (i) that the Deceased did not comprehend the 2005 Will and the gifts made in it; (ii) the Deceased was not acting of her own free and independent will, which appears to be an allegation that the claimant exercised undue influence over the Deceased at the time she signed the 2005 Will (iii) the Deceased did not know or understand what she was signing. This appears to be an allegation that the Deceased did not understand or approve of the contents of the 2005 Will.

22. Mr Sagar points out that: (i) the Beth Din files are unlikely to support the first and third defendants’ case or adversely affect the Claimant’s case on these issues; (ii) the contents of the files are not relevant to whether the Deceased comprehended the 2005 Will and the gifts made in it. (iii) in the probate context undue influence requires coercion not mere persuasion. The burden of proving this factual allegation is on the first and third defendants and the Beth Din files will not shed light on any coercion in 2005; (iv) the burden of proving knowledge and approval lies on the claimant who propounds the will. The burden is discharged by proof of capacity and due execution and the content of the Beth Din files are unlikely to contain any relevant material.

23. Mr Sagar says that in these circumstances, disclosure of the Beth Din files is not “necessary in order to dispose fairly of the claim”. Nor will it save costs.

24. To the extent that the court has any discretion to exercise the court should exercise its discretion not to order disclosure of any of the Beth Din files. (i) the Beth Din arbitration took place more than 15 years before the date of the 2005 Will; (ii) shortly after the Beth Din arbitration, the Deceased made the May 1990 Will, which excluded the claimant completely from benefiting. If it was the case (which he denies) that the claimant’s behaviour affected the creation and validity of the 1990 Will, why did they not affect her in 2005, which they plainly did not; (iii) the evidence shows that more than one will was made by the Deceased between the date of the Beth Din arbitration and the date of execution of the 2005 Will and the Deceased explored various options with her solicitors; (iv) any disclosure from the Beth Din files must be minimal and targeted. The court should not put on the Beth Din the task of identifying those documents that are, and those that are not, within the scope of disclosure; (v) evidence about the ease of the Beth Din identifying relevant documents is absent; (vi) this application for the disclosure of the Beth Din files (or any of them) is not exceptional and it is not proportionate to make such an order. Discussion and Conclusion

25. Whatever happened with the Deceased’s husband’s business after his death and the claimant’s involvement in it, the Beth Din and its award, the fact is that the Deceased made a 1990 Will which excluded the claimant and the initial validity of which is not in dispute. That the Deceased made a Will in 2005 more favourable to the claimant is highly unlikely to be explained by the content of the historic Beth Din files.

26. In 2017 the dispute about which the Beth Din made its award had happened more than a quarter of a century previously.

27. Paragraph 19 of the Defence contains the pleas about the Deceased’s reasons to disinherit the claimant by the terms of the 1990 Will. It is pleaded in support of the validity of the 2017 Declaration that the Deceased remembered the May 1990 Will and wanted it to be her final Will, rather than the 2005 Will. There is no plea that any of the reasons to disinherit the claimant in 1990 were operative on the Deceased’s testamentary reasoning in 2017. If the 2005 Will was valid when signed it demonstrates that the Deceased had moved on from the reasoning behind the 1990 Will by that time. The Beth Din files will not directly assist to explain how the Deceased came to decide upon the terms of the 2017 Declaration seeking to revive the terms of the 1990 Will..

28. I am unpersuaded that the content of the Beth Din file(s) is likely to support the case of the first and third defendants as to the Deceased’s testamentary intentions in 2017 or adversely affect the case of the claimant as to the validity of the 2005 will. I do not therefore consider that the condition in CPR 31.17(3)(a) is met.

29. I am also troubled that an order to disclose the complete file(s) held by the Beth Din, insofar as they relate to the matters pleaded at paragraph 19 of the Defence and Counterclaim and paragraph 16 of the Reply, would require the Beth Din to undertake the task of going through the file(s) to identify documents which do or do not meet the condition of relating to particular pleaded matters. An order to hand over the complete files would not be appropriate, as the terms of the application partially recognise by limiting the disclosure requested by the words “in so far as they relate” to certain parts of the pleadings, but no mechanism is suggested how sifting out the documents meeting the condition would work in practice without requiring the Beth Din to carry out that work.

30. The documents in the Beth Din file(s) might be expected to evidence a dispute between the Deceased and the claimant in the years before 1990 and provide illumination of the family background story. The application has the hallmarks of a fishing expedition embarked upon by parties who wish to elicit material for cross-examination of the claimant without any proper focus on the pleaded cases of the parties. I am unpersuaded that disclosure is necessary for the fair disposal of the claim or to save costs. Accordingly I do not consider that the condition in CPR 31.17(3)(b) is met.

31. Even if I were persuaded that conditions (a) and (b) of CPR 31.17 (3) were met such that I was required to exercise my discretion whether to order disclosure I would decline to do so. I do not consider this to be an exceptional case which warrants a third party disclosure order.