04 January, 2018
For most Wills and Probate Solicitors and Will Writers, a Larke v Nugus request is relatively rare. But what is a Larke v Nugus request, what are your obligations and how do you respond. Ben Wilson, an Associate Solicitor at Forbes Solicitors, who specialises in Contentious Wills, Trusts and Probate, provides the following tips on responding to a Larke v Nugus request.
From a contentious point of view, a Larke v Nugus request is an essential tool to establish the circumstances surrounding the drafting of the will and to properly understand some key issues.
Challenges to wills are becoming increasingly common, and disappointed beneficiaries often enthusiastically accuse family members of undue influence and fraud; and capacity issues are more common largely due to an ageing population, the rise in mental health issues such as dementia and alzheimers, and a greater awareness of mental health issues in general.
A Larke v Nugus request is often one of the first steps taken by contentious practitioners when investigating a potential claim.
So what is a Larke v Nugus request?
A Larke v Nugus request is a request made pursuant to the principles set out in the case of Larke v Nugus (1979) 123 SJ 327. This provides that the professional who drafted the will should provide information about the circumstances surrounding the drafting and execution of the will. This is despite any obligations of confidentiality you may owe to the PRs.
The request will usually come in the form of a fairly basic and neutral letter asking a list of questions, such as:
"Did the deceased exhibit any signs of confusion or loss of memory?"
"What indication did the deceased give to you that (s)he knew (s)he was making a will?"
"Who, apart from the attesting witnesses, was present at the execution of the Will?"
A request for a copy of the full file of papers is usually also requested.
And what are your obligations should you receive a Larke v Nugus request
There is no obligation for you to respond to a Larke v Nugus request. However, save in very exceptional circumstances, it is best practice to do so and there can be fairly serious consequences of not doing so (see below).
If there is any suggestion of negligence, you should obviously speak with your insurer before responding.
Where a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat, and the solicitor's knowledge makes him or her a material witness, then the solicitor should make available a statement of his or her evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will.
Practically speaking, a response will simply be a list of answers to the questions, along with any other comments you may have.
You should provide this statement regardless of whether or not you act for any of the parties, and you should provide a copy of your file of papers with the consent of any third party personal representatives.
Consequences of not responding to a request
If you refuse to respond to a request then you may face:
Again, you are not obliged to respond, but it is best practice to do so and the consequences of not responding can be fairly serious.
Ten top tips in responding to a request
My ten top tips when receiving a Larke v Nugus request are:
If you receive a Larke v Nugus request and want to discuss your response or if you are looking for any more information with regards to our services view our Wills, Probate, Tax and Trusts section. You can also contact Ben Wilson in our Wills, Probate, Tax and Trusts department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.