From personal experience, I have noted a significant increase in contentious probate instructions. In the last few years, I have instituted (as well as defended) numerous CPR 57 claims and claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.
To dispute / challenge the validity of a Deceased’s Will and understand the true intentions of the testator prospective clients will seek to obtain a copy of the Deceased’s will file prior to engaging in pre-action correspondence with the Deceased’s estate.
However, clients are typically unsure how to go about this process, including the grounds for contesting, and more often than not unaware of the ability to make a Larke -v- Nugus request.
What is a Larke -v- Nugus Request?
What is a Larke -v- Nugus Request? What is the likely content of the Correspondence? Deriving from the principles in the case of Larke -v- Nugus [1979] 123 SJ 327, a Larke -v- Nugus request is a formal request made to a firm of solicitors who prepared a will to provide information about its preparation, including the testator’s signature, and subsequent execution.
Although not legally obliged to do so, a firm of solicitors will more likely than not comply with the Larke -v- Nugus request, particularly in order to avoid a scenario where parties become unnecessarily embroiled in time-consuming and expensive litigation, leading to expensive legal costs.
The Law Society’s current Guidance
The Law Society’s current guidance contained in its Practice Note “Disputed Wills: Guidance for Practitioners” dated 5 September 2023 states that a firm of solicitors has:
“…. a duty to make every effort to avoid potentially costly litigation….and [the firm of solicitors] should make available any documents in [their] possession that are relevant to the proceedings to avoid the cost of unnecessary application applications to Court.
Providing this information promptly when a will is initially challenged may dispel suspicions and save costs in the long run…”
Incidentally, the above guidance is applicable to not just a firm of solicitors but to also all will drafters as reaffirmed in Catling -v- Catling [2014] EWHC 180 (Ch).
Notwithstanding the guidance, the firm of solicitors are obliged to comply with their duty of confidentiality (as well as legal advice privilege) and consent will be sought from the personal representatives of the estate prior to disclosure.
What can we find out?
The Larke -v- Nugus correspondence will seek to ascertain various information, which includes but is not limited to:
1. How long they had known the testator / testatrix and whom formally introduced them to the firm of the solicitors. For instance was contact made to the firm directly or via an intermediary;
2. How instructions were provided (i.e. orally, via email, in person or telephone);
3. Notes from the meeting and correspondence exchanged during the course of the retainer generally;
4. How instructions were expressed and the indications given by the Testator / Testatrix that s/he knew they was making a will;
5. The awareness of the Testator’s / Testatrix’s medical history at the time of preparing the will and whether correspondence was (or ought to have been obtained) from a medical practitioner to the effect that the Testator / Testatrix had the requisite capacity to understand that s/he was executing a will;
6. To what extent were any previous wills discussed, what attempts were made to discuss any departures from the earlier will-making patterns and the reasoning behind such departures;
7. How the provisions of the will were explained to the Testator / Testatrix after the document had been drafted; and
8. Who else save for the attesting witnesses was present at the execution of the will and whether the Testator / Testatrix displayed any difficulty executing the same.
The Response to a Larke -v- Nugus Request – the likely timescales, content and costs
The party making the request unfortunately cannot expect the preparation of the response by the firm of solicitors to be free of charge, unless a conditional fee arrangement is in place. The SRA Code of Conduct doesn’t prohibit a firm of solicitors charging “reasonable costs” for complying with the request and producing the information.
Ordinarily, the firm of solicitors preparing the response will set out their projected fees and more often than not a formal undertaking will be sought to the effect that their fees will be discharged in full to ensure reasonable financial provision.
Unsurprisingly, in recent times I have noted that the “reasonable costs” to be somewhat varied as it is wholly dependent upon the extent of the instructions, the time taken to draft the documentation and the complexity of the work undertaken generally.
In respect of timescales, I have typically requested compliance within a specified deadline (i.e. 14 – 28 days) although in some instances urgent compliance has been required due to limitation (which I have personally requested on a number of occasions).
Please note that there are cost implications for firms who unnecessarily delay complying with a Larke -v- Nugus request as exemplified by Addison -v- Niaz [2024] EWHC 3124 (Fam). In this case, a delay of 3 months was deemed unreasonable with Chief Master Shuman intimating that the delays in the case had been “lamentable” and had not helped the parties “…one jot in terms of trying to reach a resolution to the matter…”
Typically, the will drafter will devise a witness statement supported by information contained in the will file. In an effort to save time, some will drafters simply elect to save time and disclose the will file in full (although there are obvious risks for the will drafter particularly in relation to data protection / GDPR).
Further Questions
If you have any further questions regarding Larke -v- Nugus requests; you are contemplating contesting a will or seeking advice regarding contentious probate matters generally then please do not hesitate to contact Partner Billy Smith on 0203 947 8905 / b.smith@rfblegal.co.uk or the firm generally on 020 7613 1402 / info@rfblegal.co.uk.
Billy Smith
Ortak
