Larke v Nugus - Your Questions Answered

Challenging the validity of a will can be a complicated situation. As part of your case, your solicitor may make a Larke v Nugus request to the solicitor who drafted the will, asking them for evidence about the person making the will and the circumstances surrounding it.

Below, the expert contentious probate solicitors at JMW answer some common questions about Larke v Nugus requests regarding a testator's testamentary capacity or the existence of earlier wills.

To speak to one of our contentious probate solicitors about challenging a will or any other issue relating to a will dispute or a claim on an estate, get in touch with JMW today. Call us on 0345 872 6666 or fill in our online enquiry form to request a call back.

What Is a Larke v Nugus Request?

A Larke v Nugus request is 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 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 their will?
• How did the deceased communicate their approval?

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.

Does a Solicitor Have to Respond to a Larke v Nugus Request?

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

What if a Solicitor Fails to Respond to a Larke v Nugus Request?

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.
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.

In some circumstances the court has the power to order pre-action disclosure of relevant documents.

Do the Rules of Confidentiality and Legal Advice Privilege Apply to a Larke v Nugus Request?

A solicitor's confidentiality obligations continue after the client’s death, as does legal advice privilege, which makes them relevant to a Larke v Nugus request.

If the solicitor is named as an executor in the will, then they are able to waive legal advice privilege. Otherwise, they ought to obtain consent 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 Solicitors Regulation Authority's (SRA) Code of Conduct for Solicitors.

Why Are Larke v Nugus Requests Beneficial?

The evidence of the solicitor who was instructed to make the will is likely to be key evidence in any potential challenge to the will, and gathering that evidence at an early stage will inevitably help to prevent costly litigation. On the receipt of a Larke v Nugus response, the parties will be able to assess the circumstances in which the will was prepared and executed, and get a better understanding of the merits of a claim.

Can a Solicitor Charge for a Larke v Nugus Response?

The SRA Code of Conduct for Solicitors does not prohibit a lawyer from charging reasonable fees for preparing a Larke v Nugus statement, but they have a duty to treat others fairly. The solicitor must decide, in light of the circumstances, whether it is appropriate to charge. Reasonable photocopying charges may also be requested.

Who Can Make a Larke v Nugus Request?

Anyone who has a legal interest in the dispute can make a Larke v Nugus request to the professional who prepared the deceased’s will.

What Should a Solicitor Do on Receipt of a Larke v Nugus Request?

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 is often to provide a copy of the will file and a full attendance note from the time the will was prepared.

If the solicitor is not named as executor in the deceased’s will, they should indicate that they are prepared to comply provided that the named executor consents to the disclosure. Where there is no executor, the solicitor will require the consent of those interested under the will.

What Should a Solicitor Do if a Larke v Nugus Request Includes Allegations of Negligence?

Where a Larke v Nugus request 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.