If you are considering disputing a will on the grounds explained here, the first formal step is often to make a Larke v Nugus request. This insight explains more about a Larke v Nugus request.
A history of the case
In the case of Larke v Nugus, the validity of a will was challenged on the grounds of undue influence. Information relating to the will’s preparation was requested on numerous occasions but was never provided by the will writer.
The Court decided that the parties should make every effort to avoid the costs of unnecessary litigation. In this case, evidence relating to the preparation of the will should have been provided and would have avoided the ligation. The court then ordered the will writer to pay the legal costs of the litigation because they failed to provide the information and caused the unnecessary litigation.
What is a Larke v Nugus request?
It is a term which derives from the original case. Essentially, it is a request for a statement from the solicitor/will writer who prepared the will about the circumstances surrounding the will’s preparation. In many cases it is prudent to provide a copy of the will file as well. There is no precise format for a request nor for the information that must be provided.
When to use it
If you are considering disputing a will, a Larke v Nugus request can be a powerful tool to emphasise any concerns you might have or highlight new areas of concern. In some cases, the will file can be particularly helpful.
What you can ask for
Ordinarily the request should be made in the form of a letter. Information which you would typically be able to request, is as follows:
- How long the will writer knew the deceased.
- The form and nature of the instructions given to the will writer.
- The circumstances in which the will was executed (signed).
- Any information/evidence as to the deceased’s capacity/health at the time of executing the will.
- Whether there were any earlier wills, and whether these were discussed when instructions were received.
- Whether the contents of the will were understood by the deceased at the time of execution.
- A copy of the will preparation file.
Does a solicitor/will writer have to provide the information requested?
A solicitor/will writer is not obliged to provide the information sought. In particular, a lack of clarity over the claims you intend to make will likely result in a request being refused. Additionally, the guidance indicates there should be a dispute before a solicitor/will writer should release the information requested. In some cases that may mean sending a letter of claim to the other parties first.
However, Larke v Nugus resulted in consequences for failure to provide the requested information. Namely, if the failure to comply with the request results in unnecessary costly litigation, the will writer could be at risk of being brought in the legal proceedings and sued for legal costs which otherwise could have been avoided. Accordingly, Larke v Nugus requests will often be complied with to avoid such costs. A response should be provided within a reasonable period.
What to do if you receive a Larke v Nugus request as an executor
Sometimes a party will write to an executor asking them to provide a copy of the will file. In the first instance, it is usually a good idea to take some legal advice on the issues. There might be good reason not to provide the information at that stage.