Our Disputes and Litigation team were recently instructed in a Will dispute where access to medical records was required to be able to prove whether the Will in question was valid.  The issue was around whether the person who made the Will had capacity at the time the Will was made, something which could only be proved with access to their medical records. 

The deceased’s GP surgery refused to allow Penderlaw Solicitors access to the medical records they held, and in doing so, meant that the family disputing the Will had to go to court to gain access to this information.

The case came to court in March 2025 and the Judge ruled that the medical records should be disclosed to the solicitors to help establish the validity of the Will.

Solicitor Rachel Macwilliam outlines the details of the case which enabled this judgment to be reached.

Tubb & another v Rosmellyn Surgery [2025] 5 WLUK 262

For the first time in a reported case, a decision has been made on the scope of people who fall within the definition of having “a claim arising out of [a] patient’s death” in accordance with section 3(1)(f) of the Access to Health Records Act 1990 (AHRA).

The background

The Claimants, represented by Penderlaw, lost their mother in November 2023. At the time of her death, a Will was produced that was purportedly executed less than six months beforehand (the 2023 Will), which was significantly different to previous Wills, and which excluded the Claimants entirely in favour of their estranged sister.

The 2023 Will was executed very shortly after the deceased was discharged from a stay in hospital. Concerned about her capacity to make a Will, the Claimants sought advice and started to request disclosure of information, including her medical records from both the Defendant, who was her GP, and the hospital.

Whilst the hospital was forthcoming and provided the medical records as requested, the Defendant refused.  Their justification for doing so was that they did not believe that the Claimants fell within the definition of people entitled to the medical records under section 3(1)(f) of the AHRA, because they did not consider that a challenge against the validity of a Will was a claim arising out of a death.

Unable to investigate the validity of the 2023 Will without the GP records, the Claimants had to resort to issuing a claim in the court for an order that they be disclosed.

The claim was issued in October 2024 and listed for a hearing in March 2025.

The key arguments

Represented by Matthew Hill of 1 Crown Office Row, The Defendant’s arguments focused primarily on the following points:

1. That a claim against the validity of a Will was not a claim arising out of a death, but one which arose from a testator’s actions during their lifetime;
2. That analysis of the discussions that took place in Parliament when the Act was passing through the bill stage indicated that the purpose of section 3(1)(f) AHRA was limited to dependants bringing claims under the Fatal Accidents Act 1976;
3. That a more appropriate route to obtain an order for disclosure of the records would have been to make an application for non-party disclosure in proceedings to prove against the validity of the 2023 Will; and
4. That if a probate claim was to fall within the scope of section 3(1)(f), this would create an impractical, burdensome and unworkable task for the record provider.

The Claimants, who were represented by Elizabeth Atkinson of Ten Old Square, argued:

1. That a claim against the validity of a Will was a Probate claim, and there was a direct causal link between the testator’s death and the ability to bring a Probate claim;
2. That it could never have been Parliament’s intention to limit the scope of people able to obtain records under section 3(1)(f) of the AHRA to dependents under the Fatal Accidents Act, and if this was their intention, the AHRA would make specific reference to it;
3. That the medical records were vital in establishing whether there was any cause to formally challenge the validity of the 2023 Will, and it was therefore premature and inappropriate to issue a claim for the sole purpose of making an application for a non-party disclosure order in those proceedings; and
4. That the burden placed upon a record provider with regard to disclosing records in a Probate claim was no more burdensome than if those records were being requested due to a claim under the Fatal Accidents Act.  

District Judge Field heard the application, and in a judgment formally handed down on 19 May 2025, found in favour of the Claimants. In particular, his findings were as follows:

1. There is a very significant degree of causal connection between a Probate claim and a testator’s death, as a probate claim cannot be brought during the lifetime of a testator. Therefore the Claimants’ proposed probate claim arises from the death of their mother within the meaning of section 3(1)(f) of the AHRA;
2. The wording of section 3(1)(f) was not ambiguous and therefore it was not appropriate to consider the discussions that took place in Parliament at the time the AHRA was being passed;
3. The inclusion of Probate claims as falling within the scope of the AHRA did not create a more burdensome task for record providers than for those making a claim under the Fatal Accidents Act;
4. The AHRA provides a mechanism under section 3(6) and section 8 for a determination by a court as to whether a person is entitled to copies of a patient’s medical records and the Defendant’s suggestion that an application for non-party disclosure order in wider proceedings was not accepted.

DJ Field therefore ordered that the Defendant was obliged to provide the Claimants with their late mother’s medical records.

What this means for Claimants

Although the decision was made in the lowest level of court, this judgment will provide much needed clarity and guidance to Claimants, legal practitioners and medical practitioners alike, as to who would fall within the scope of the Access to Health Records Act 1990. Whilst questions remain about the extent of the records that should be disclosed, as only records which are relevant to the claim should be disclosed, the important matter of whether a claim against the validity of a Will should be considered a claim arising out of a death has, at least for now, been determined.

A full copy of the judgment can be found here: Tubb & Anor v Rosmellyn Surgery [2025] EWCC 23 (19 May 2025)

Get in touch

Penderlaw’s Disputes and Litigation team are experienced in dealing with issues surrounding the validity of a Will. If you are concerned about the circumstances surrounding a loved one’s Will, please get in touch via our contact form on the website, by phone on 01872 241408, or by email info@penderlaw.co.uk