Contested Probate – Larke v Nugus Request
There are a number of ways in which a person’s Will can be challenged. Two potential grounds – lack of capacity and undue influence – have been considered in a previous article.
When looking at challenging a Will it is often essential to ascertain details as to the background and circumstances of the same being prepared. As such, it is often an important part of the process to send a Larke v Nugus request to the solicitor/Will writer who prepared the Will that is being challenged. In our latest article, Sam Dale tells you everything you need to know.
What is a Larke v Nugus Request?
A Larke v Nugus request is named after a Court of Appeal case which detailed what a solicitor should do when a Will they have prepared is being challenged.
A Larke v Nugus request is a method of obtaining information about the preparation and execution of a Will.
What information is requested?
This should be carefully considered on a case-by-case basis. However, information as to the following should typically be requested:
- The relationship between the Will writer and the testator (the person who is making out the Will);
- Details as to how the instructions were given;
- Who was present at the time the instructions were being given;
- Details as to how mental capacity was established and documented;
- Information with regard to any earlier Wills the testator had prepared and the reasons provided by the testator for the changes;
- How the terms of the Will were explained to the testator and whether these were understood;
- Details as to who was present when the Will was executed and where this took place.
When the above questions are being raised, it is common to also request a copy of the client file.
Does a solicitor/Will writer have to respond to a Larke v Nugus request?
Solicitors/Will writers do not have a duty to respond to such requests but they may be penalised for failing to do so.
Solicitors have a duty of confidentiality to their clients and this continues following their death. However, Law Society guidance states that a full response should be provided when a Larke v Nugus request is received. If the solicitor to which the request is submitted is not the executor, they should obtain authority from the executors before providing such a response.
What if a response is not received?
There could be numerous reasons as to why a response is not received. The Will file providing the required background could have been destroyed (although this in itself should not prevent a response in some form) or the executors may have refused to provide their authority to the solicitors.
In such circumstances, it may be necessary to consider an application to the Court for what is known as pre-action disclosure
If you have any further questions regarding a Larke V Nugus request, or would like to seek advice, please do not hesitate to contact your local office. Alternatively, Sam can be contacted directly at firstname.lastname@example.org