Katie Alsop explains what you should consider if you are making or receiving this request in relation to wills.

The so-called Larke v Nugus request originates from the Court of Appeal having affirmed the action that should be taken when enquiries relating to the preparation and execution of a will are made, in Larke v Nugus SW vol 123 (1979) CA (p337) and later reported in (2000) WTLR 1033. (The Law Society’s practice note relating to this topic can be accessed through the Law Society’s website.)

A Larke v Nugus request is a tool that can be used to obtain information about the preparation and execution of a will. Typically, Larke v Nugus requests are made by disappointed beneficiaries who expected to be named in a will but are not; and in circumstances where the testator’s testamentary capacity is in question, and investigations are needed as to the instructions that were provided to the will drafter, and the actions taken by the will drafter in response.

If you are making a Larke v Nugus request

When making a Larke v Nugus request, it is often the case that the testator was suffering from physical illness or mental illness which, at the time the instructions were given for the will to be drafted, were such that it would call into question the testator’s testamentary capacity to make the will. 

Tailor it to the matter in hand

Careful consideration should be given to the type of information that the enquirer wishes to extract from the will writer when making the request. This is important, because questions should be tailored to the matter in hand. 

As with any area of law, let alone the niche area of contentious probate, there is always a danger associated with using standard documents, as there will be varying circumstances requiring a bespoke Larke v Nugus request. It is certainly not a one-size-fits-all piece of work. 

If, for example, there are specific concerns as to whether the testator had the necessary testamentary capacity, questions should be asked of the will writer to ascertain if any testamentary capacity assessment was undertaken, and if so, by whom; and if there were concerns on the part of the will drafter, how they were dealt with. Was the golden rule followed, that is, did a medical professional act as a witness to the testator’s signature? 

Alternatively, the concerns may lie with constraints on a testator’s physical ability, such as loss of sight or hearing, or a language barrier that may have prevented the testator from understanding the content of the will when approving it. 

Request the will drafter’s notes

It is often advisable to request, at the very least, a copy of any telephone notes or attendance notes made by the will writer, but a full copy of the will file should ideally be requested. This allows the enquirer to assess the instructions that were given, the advice that was provided, and how the final will came to be as drafted. 

In practice, it is often the case that a letter with responses to the various questions will be provided, together with a copy of the complete will file. If it appears to the enquirer that documents are missing, confirmation should be sought from the will drafter that any file supplied is a complete copy of the will file. If only excerpts have been provided, that should be confirmed, so that all parties are aware of the position. 

If you have received a Larke v Nugus request

In the event that you have drafted a will and the circumstances surrounding that will give the testator’s relatives, or other interested third parties, cause for concern, it is likely that a Larke v Nugus request will be made. This is so that the enquirer can assess if there is merit in disputing the will. 

The guidance provided by the Law Society is helpful, and a practitioner would be well-advised to review it before responding to any request. The area often causes difficulty, as it requires the practitioner to consider their duties of confidentiality and disclosure, and how that duty of confidentiality continues after the end of the retainer. 

In circumstances where there is no suggestion of negligence by the will drafter, a full response should be provided to the Larke v Nugus request that’s been received. The information provided should extend to the preparation of the will, the circumstances in which it was executed, and disclosure as to whether you are acting on behalf of any of the parties named in the will or connected with the estate. With the consent of the personal representatives of the deceased, copy documentation should be made available to fully deal with the Larke v Nugus request. 

This full response will then enable the enquirer to properly consider their position, possibly with legal advisors, before proceeding further. It may well be that once the questions have been posed and dealt with, the ‘suspicious circumstances’ fall away, or it may lead the enquirer to obtain medical records to deal with any outstanding testamentary capacity issues. 

A Larke v Nugus request is a helpful process which, when used properly, allows a legal advisor to assess the merits of bringing a case without the enquirer incurring excessive legal fees in doing so. It should be noted, however, that it is crucial to pose the correct set of enquiries, so as to extract the relevant information, which will depend on the circumstances of each case. It is therefore advisable to instruct a solicitor to make those enquiries to ensure that all of the pertinent information is extracted at an early stage. 

About the author

Katie Alsop is an associate at Wright Hassall LLP.

Publication date: 28 August 2018