Larke v Nugus – What You Need to Know!

When a client explains that they are sceptical about how the Will of their loved one was prepared or executed, a Larke v Nugus request is almost always the first step in investigating a potential claim. From a contentious point of view, a Larke v Nugus request is an extremely helpful tool in providing insight into the circumstances in which a Will was both prepared and executed.

So, what is a Larke v Nugus request?

A Larke v Nugus request is a request made under the principles established in the case of Larke v Nugus (1979) 123 SJ 327. This states that where there are suspicions around how a Will was prepared or executed, the solicitor who was instructed in relation to the Will can be asked to disclose information shedding light on these.

The request is most often communicated in the form of a basic and neutral letter asking a list of questions including, but not limited to:

• Who else was present at the time of the Deceased’s instructions being given?
• What indication did the Deceased give to you that they knew they were making a Will?
• Did the Deceased exhibit any signs of confusion or loss of memory?
• How did you satisfy yourself that the Deceased knew and understood the contents of the Will and how was such approval communicated by the Deceased?

Practically speaking, a response will simply be a list of answers to the questions, as well as any further comments the solicitor wishes to add. A copy of the will file is also usually included.

Can you ignore a Larke v Nugus request? 

When you receive a Larke v Nugus request, you are under no duty to respond. However, you must remember that you have a duty to make every effort to avoid potentially costly litigation, which would include complying with a Larke v Nugus request.

Failing to respond to a Larke v Nugus request may result in the any of the following:

1. You may be subject to a costs order, regardless of whether the Will is ultimately found to be valid. In Larke v Nugus, the Court of Appeal refused to order the party challenging the Will to pay the costs incurred in the challenge and instead ordered that the costs be paid from the estate. This, consequently, reduced the beneficiaries’ inheritance who would have been justified in seeking redress from their solicitor.
2. The other party may apply to the court to issue a witness summons, also known as a ‘subpoena’, compelling you to answer questions about the preparation of the Will. This would no doubt be an inconvenience for all parties involved.
3. Before a claim is issued by the opposing party, the court has the power to order pre-action disclosure of relevant documents.

Is confidentiality relevant to a Larke v Nugus request?

On receipt of a Larke v Nugus request, a professional should consider whether the testator is still alive, as a duty of confidentiality is owed to clients during their lifetime. If so, the testator should be contacted to discuss whether the documents requested should be disclosed. Where the client has passed away, the duty of confidentiality owed to them passes to their personal representatives.

The Deceased’s executor’s authority begins from the date of the testator’s death, provided that the Will appointing them is proved. An administrator’s authority, on the other hand, only begins once the Grant of Letters of Administration is issued by the Probate Registry. 

Disclosing the contents of a Will file without the consent of the Deceased’s personal representative is a failure to comply with the SRA Code of Conduct for Solicitors.

Other helpful points in relation to a Larke v Nugus request 

1. Making a Larke v Nugus request helps both you and your client avoid costly litigation.
2. Full responses to a Larke v Nugus request, generally, should be provided within a reasonable time, which is understood to mean 2 to 3 weeks.
3. Solicitors are not prohibited for charging for the preparation of a Larke v Nugus statement, as long as they’re reasonable.
4. Anyone who has an interest in the dispute can make a Larke v Nugus request to the professional who prepared the Deceased’s Will.
5. Where a Larke v Nugus request is received and it alleges negligence in the preparation and/or execution of a Will, the practice’s indemnity insurer and Compliance Officer for Legal Practice should both be contacted and given notice of the matter.