Larke v Nugus – tips from the dark side
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:
- Costs order against you regardless of whether the will is ultimately found to be valid. In the case of Larke v Nugus the Court of Appeal refused to order those challenging the will to pay the costs of the challenge even though the will was found to be valid. The claimants’ costs were ordered to be paid from the estate and reduced the amount available for the beneficiaries. The beneficiaries would have been justified in seeking redress from the solicitor.
- The court has the power to order persons with knowledge of any testamentary document to attend court and answer questions relating to the document (Senior Courts Act 1981, s.122).
- Order for pre-action disclosure made against you under Civil Procedure Rule 31.16.
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:
- Don’t panic! A Larke v Nugus request is used by contentious lawyers as a fairly routine way of fact finding.
- Don’t take it personally. More often than not, a Larke v Nugus request is not an attack on you personally or professionally, it is simply a way of finding key information.
- If there is mention of professional negligence, do not respond immediately and seek guidance from your insurer.
- With the consent of any third party PR, make available a copy of requested documents.
- Remember your response may be used as evidence at trial, and you may be called as a witness.
- Answer the questions! It may sound simple, but it is important to focus on what is being asked and answer the question directly. If you do not know the answer, just say so.
- Make your answers factual, succinct and to the point.
- Don’t be afraid to say you cannot remember something. If you cannot remember specific details, just say so. It is not unreasonable for you to have forgotten a detail from a client meeting which may have happened many years ago.
- Respond quickly and within 21 days. If you cannot respond within this time limit, then let the firm who sent the request know along with a date by which you expect to be able to respond.
- Be neutral. I often receive long, rambling responses to a Larke v Nugus request which read more like a defence to a claim than a response to a Larke v Nugus Remember it is not your job to defend any proceedings; just keep it simple.