When someone is considering contesting the validity of a Will, perhaps due to suspicion over the Testator’s testamentary capacity or a suggestion of undue influence in the Will making process, a sensible first step to establish whether or not there are good grounds for a claim, is to ask the Will writer for information and documents surrounding the preparation and execution of the Deceased’s Will.
The case of Larke vs Nugus (1979) 123 SJ 337 set out the law on requests for information regarding the circumstances surrounding the instructions and execution of a Will, hence why the request is known as a Larke vs Nugus request. The request is normally sent in the form of a letter to the solicitors/Will writers who prepared the Will, and it asks them to provide a statement regarding the circumstances around the preparation and execution of the Will. The Will writer’s response is known as the Larke vs Nugus response or Larke vs Nugus statement.
What happened in the case of Larke vs Nugus?
In the case of Larke vs Nugus, the Claimant questioned the validity of the Deceased’s Will and had concerns that the Testator had been under undue influence when making it. The Claimant made several unsuccessful requests to the professional Executors of the Will, who also drafted the Will, for information about the circumstances of the instructions and the execution of the Will to try and resolve the claim and limit legal costs. The Solicitor argued that, due to legal advice privilege, he did not have to provide the information as requested. In order to obtain the information, the Claimant issued proceedings and the Court held that Executors should make every effort to avoid litigation and provide information to Claimants. The Court further stated that a Testator’s Solicitor can also be called upon to give a statement in relation to the circumstances of the Will preparation and execution even where they are not Executor.
What is asked in a Larke vs Nugus request?
The request usually contains a request for a copy of the Will writer’s file and papers relating to the preparation and execution of the Will, and the letter normally contains a list of questions asking for information and documentation relating to:-
- How long the Will writer had known the Testator;
- Details of when, where and how the instructions for the Will were given, and if a meeting took place, who else was present at the meeting;
- How the Will writer was sure the Testator knew and understood they were making a Will, what its’ contents were and how the contents were communicated;
- Details of the Will writer’s assessment as to the Testator’s testamentary capacity and undue influence.
- Whether earlier Wills were discussed with the Testator and if so, what changes were recorded and explanations given for those changes;
- Details of when, where and how the Will was executed, and if a meeting took place, who else was present at the meeting etc.
Testamentary capacity refers to a person’s legal and mental ability to make or alter a valid will. In England and Wales, this requires that the person understands the nature and effect of making a will and the extent of their estate, can comprehend and appreciate the claims of those who might expect to benefit from their estate, and they must not be suffering from a disorder of the mind or insane delusion. This was set out in the 1870 case of Banks v Goodfellow.
Undue influence in the context of making a will refers to situations where someone exerts pressure on the person making the will (the testator) to such an extent that it overcomes the testator’s free will. This influence can be through coercion, manipulation, or psychological pressure, leading the testator to make decisions in their will that they would not have made freely. If undue influence is proven, the affected provisions or the entire will can be declared invalid by a court.
With a Larke vs Nugus request, does the Will writer have to respond?
The short answer is no, but the Court encourages disclosure at an early stage to assist parties in resolving a potential claim.
If the Will writer refuses to disclose information, they put themselves at risk of a Costs Order being made against them if the information requested would have assisted the parties in resolving the dispute and would have reduced the parties’ legal costs.
The Will writer should also seek the approval of the Executors of the Will to disclose the information and documentation requested because, otherwise, it would be a breach of client confidentiality (which passes to the Testator’s Personal Representatives on death) and a breach of the SRA Code of Conduct.
Blog: What Happens if my Will is Found to be Invalid?
Making a Will is one of those tasks that often gets overlooked, however the importance of having a Will is clear. Without a Will, your assets will be distributed following the rules of intestacy which might mean that your assets are passed to someone who you may not have chosen. However, whilst having a Will is important, having a valid Will is paramount!
A blog by Joanne Gibson, Private Client Associate Solicitor
What costs are involved with a Larke vs Nugus request?
A Will writer is entitled to charge reasonable fees for producing a Larke vs Nugus statement, and they may also charge reasonable photocopying charges for their file of papers.
We usually conduct Larke vs Nugus requests as part of a wider investigation into other matters, so our time is charged on an hourly rate basis.
What timescales are involved with a Larke vs Nugus request?
Unfortunately, there is no set timescales for a Will writer to produce a Larke vs Nugus statement, although the Law Society guidance on this topic suggests that a reasonable period to respond is two to three weeks, or as long as it takes to retrieve the file, consider the contents, obtain consent to disclosure, copy the file if necessary, and prepare the statement requested.
Final Thoughts
We generally get positive results from our Larke vs Nugus requests for our clients and would be more than happy to assist you in preparing and sending a Larke vs Nugus request, and any other potential investigations you may wish to make in relation to a potential challenge to the validity of a Will, get in touch.
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
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