March 23, 2023
When someone is considering contesting a Will, perhaps due to suspicions over their testamentary capacity, or a suggestion of undue influence, a sensible first step to establishing whether or not there are good grounds for a claim is to ask the Will writer for information and documentation relating to the circumstances surrounding its preparation and execution. This is in accordance with the principle set out in the case of Larke v Nugus [1979] 2WLUK 153, hence the request is referred to as a Larke v Nugus request, and the Will writer’s response is known as a Larke v Nugus statement.
In Larke v Nugus the claimants questioned the validity of the deceased’s Will and had concerns that the testator had been under undue influence when making it. The claimants made several unsuccessful requests to the professional executor for a copy of the Will, in an attempt to try and resolve the claim early and limit the legal fees incurred, as the costs involved in contesting a will can be significant.
The claimants issued court proceedings and the Court held that executors involved in such a claim should make every effort to avoid costly litigation and to provide information to the claimants which might assist in doing that. It therefore held that a copy of the Will should have been provided to the claimants upon request. The Court went further and later confirmed that the Will writer may be required to give a statement to any interested party about the circumstances of the execution of the Will. (Larke v Nugus [2000] WTLR 1083).
A Larke v Nugus request usually asks the Will writer about the following:
It will usually also contain a request for a copy of the Will writer’s file of papers relating to the Will, which helps show that the Will properly reflected the testator’s intentions.
The Will writer should seek approval from the executor before responding to a Larke v Nugus letter to ensure that no one can make a claim to privilege in respect of the information and documentation which has been requested, and that they consent generally to responding to the request.
The Law Society Guidance on Disputed Wills sets out the best practice for a solicitor considering how to respond to a Larke v Nugus request, and what considerations need to be given to privileged material and the General Data Protection Regulations (GDPR).
No, but the Court encourages disclosure at an early stage to assist the parties in resolving the potential claim without the need to go to Court. A Will writer refusing to disclose information puts themselves at risk of an adverse order in respect of legal costs at the end of the proceedings, particularly if the information requested would have assisted in resolving the claim at an early stage if it had been shared; for example, it may be that a person considering contesting a Will might decide against bringing a claim if the Will writer’s answers to a Larke v Nugus request satsify them of the existence of a valid Will.
In some circumstances the solicitor might be justified in not responding if there are no real grounds for a challenge to the Will, but usually, if someone is considering contesting a Will on the grounds of (e.g.) someone exerting undue influence or lack of testamentary capacity, it is advisable to respond.
Under section 122 of the Senior Courts Act 1981 the Court can order persons with knowledge of a testamentary document to attend Court and answer questions about it. Further, under Rule 31.16 of the Civil Procedure Rules, an application for pre-action disclosure can be made which, if successful, would oblige the Will writer to disclose certain documents and classes of documents before a claim is issued.
There is nothing within the SRA Codes of Conduct which prohibits solicitors from charging for the preparation of a Larke v Nugus statement. Any charges issued must be reasonable, and should ideally be discussed in advance of any work being carried out on the Larke v Nugus statement. Will writers who are not regulated by the SRA should consider asking the executor or person making the Larke v Nugus request whether they would be willing to pay a fee for the work done on the statement.
A Larke v Nugus request is intended to make enquiries about whether the Will was valid, not whether the testator made reasonable financial provision for everyone entitled under the 1975 Act. However, often there is crossover and disappointed beneficiaries who might be entitled to provision under the 1975 Act will argue that the testator would not have left them out of their Will so it cannot have been validly made, and it may then be appropriate to make enquiries about the validity of the Will. Therefore, it is common to see Larke v Nugus requests used in disputes which also feature claims under the 1975 Act.
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