Probate and Will, Trust & Estate Disputes

Publish date

10 February 2022

What issues can arise in making and responding to Larke v Nugus requests?

Here, we answer common questions relating to Larke v Nugus requests.

1.     What are Larke v Nugus requests and when to use them?

A Larke v Nugus request derives from the Court of Appeal decision in Larke v Nugus [1979] 2WLUK 153. The decision implements the action one must take when enquiring about the preparation and execution of a will.

2.    Who can make the request?

Persons who have a genuine concern about the validity of a will can make a Larke v Nugus request.

3.    Who to address the request to and what must be included?

The request is in the form of a letter to the drafter of the will to ask for their information surrounding the creation of the will. This will involve asking a list of questions, there is no prescribed set of questions that must be asked. However, the most common questions include:
–    The length of time the will drafter knew the Deceased
–    How they were introduced and the date of receiving instructions
–    Request for any correspondence involving the instructions of the Deceased
–    Questions regarding how the Deceased conveyed their intention to make a will
–    Questions regarding the method in which capacity was established and if there was any doubt in the will drafters mind about the testamentary capacity of the Deceased
–    What information was provided to the Deceased regarding the provisions included in the will.

Additionally, when making the request, it is customary to ask for copies of any documents or correspondence on the will file or previous will files.

4.     What you can expect to receive back?

The drafter or the firm he/she worked for can respond with a letter and an enclosed will file, which includes documents such as correspondence with the Deceased and attendance notes, which can help form an idea of the Deceased’s intentions during the Will making process.
Additionally, they will respond to the list of questions provided they are in relation to the creation and execution of the will.

The Law Society do not prohibit charging for the preparation of a Larke v Nugus statement. However, these charges should be reasonable.

5.     Can the addressee refuse to respond and if they do, what can you do, if anything?

The Law Society states:

“You are under no duty to comply with a request for a Larke v Nugus statement. However, you do have a duty to make every effort to avoid potentially costly litigation”.

Will drafters should therefore be cooperative.  As they owe a duty of confidentiality to their client (the Deceased and thus their estate), the will drafter cannot send a Will file to anyone without the consent of the executor of the estate.  When it comes however to responding to questions, they must judge whether the request is made in the context of a genuine dispute (is the enquirer having concerns that may ultimately develop into valid ground on the basis of which Will may be revoked) or is it just a fishing expedition.  If it is the latter, the will drafter is not obliged to respond. If the request comes however within a context of genuine potential litigation, lack of reply, may simply lead to the will drafter being summoned to act as a witness later on in the court process, in much more antagonistic (for the will drafter) climate.

If you have any questions about this topic, please get in touch

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