Larke v Nugus – Your Questions Answered

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 serious concerns about the validity of a will, beyond the mere entering of a caveat, and the solicitor’s knowledge makes them a material witness, then the solicitor who drafted the will should make available a statement of their evidence regarding the preparation and execution of the will.

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.

A solicitor is under no duty to respond to aLarke v Nugusrequest. However, they do have a duty to make every effort to avoid potentially costly litigation, which would include complying with aLarke v Nugusrequest.

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

1. The solicitor 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 of 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 the solicitor to answer questions about the preparation of the Will. This would incur cost and waste time for all parties.
3. In some circumstances the court has the power to order pre-action disclosure of relevant documents.

Yes, they are.

The duty of confidentiality continues after the client’s death, as does legal advice privilege; and so it is relevant to a Larke v Nugus request.

If the solicitor is named as executor in the will, then they are able to waive legal advice privilege, otherwise permission should be sought from the Deceased’s personal representatives.

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.

The evidence of the solicitor who was instructed to make the will is likely to be key evidence in any will dispute. Therefore, knowing what that evidence will be at an early stage will inevitably help to avoid costly litigation. On the receipt of aLarke v Nugusresponse, the parties will be able to assess the circumstances in which the Will was prepared and executed and therefore get a better understanding of the merits of a claim.

The SRA Code of Conduct for Solicitors does not prohibit charging for the preparation of a Larke v Nugus statement. However, those charges must be reasonable.

Professionals have a duty to treat others fairly, as per paragraphs 1.1 to 1.4 of the SRA Code of Conduct for Solicitors. The solicitor must decide, in light of the circumstances, whether it is appropriate to charge. A reasonable charge may also be made for photocopying.

Anyone who has a legal interest in the dispute can make aLarke v Nugusrequest to the professional who prepared the Deceased’s Will.

Where the solicitor is named as executor in the Deceased’s Will, the solicitor should provide the requested statement and relevant documents provided that no other person has a substantial claim to legal privilege in the material. The most convenient way of doing this is often providing a copy of the contents of the Will file, which would undoubtedly include a full attendance note at the time the Will was prepared.

Where the solicitor is not named as executor in the Deceased’s Will, it is sensible to indicate that you are prepared to comply with the request provided that the named executor consents to your disclosure. Where there is no executor, you would require the consent of those interested under the Will.

Where aLarke v Nugusrequest is received and it alleges negligence in the preparation and/or execution of a Will, the solicitor should inform any lay executors and beneficiaries that they may wish to take independent legal advice. The practice’s indemnity insurer and Compliance Officer for Legal Practice should both be contacted and given notice of the matter.

Contact us if you have any questions relating to a Larke v Nugus request for a free no obligation chat. You can contact us by calling 0345 872 6666 or by completing the form found on this page.

Further information can also be found in the Law Society Practice Note – Disputed Wills.