What is a Larke v Nugus request?
A Larke v Nugus request is made when you ask the solicitor who prepared a disputed will to provide a statement about the circumstances in which it was prepared. These statements are frequently requested where the validity of a will is being challenged on the grounds of lack of testamentary capacity, undue influence or want of knowledge or approval.
The name, Larke v Nugus, originates from a legal case that determined the law on requests for information regarding the circumstances surrounding the preparation and execution of a will.
The starting position in relation to disclosure of information regarding a deceased’s will is that the information should only be made available to the personal representatives of the estate (or to others with their consent) prior to obtaining the Grant of Administration. However, this does not apply where a request for information is made to the solicitor who prepared or witnessed the execution of a will that is disputed. In these circumstances the Law Society has recommended since 1959, that the solicitor should make a statement outlining the circumstances surrounding the instruction and execution of the will to any party to probate proceedings or someone who has a reasonable claim against the will. The case of Larke v Nugus endorsed this longstanding recommendation, which means that a Larke v Nugus request for information now carries judicial weight.
A Larke v Nugus request may seek the following information and documentation:
- How long the solicitor had known the deceased;
- Who introduced the solicitor to the deceased;
- The date the solicitor received instructions from the deceased;
- Contemporaneous notes of all meetings and telephone calls, including confirmation of where the meeting took place and who else was present at the meeting;
- How the instructions were expressed;
- What indication the deceased gave that they knew they were making a will;
- Whether the deceased exhibited any signs of confusion, loss of memory or ill health;
- Whether and to what extent earlier wills were discussed and what attempts were made to discuss departures from the deceased’s earlier will-making pattern; what reasons the testator gave for making any such departures;
- How the provisions of the will were explained to the deceased; and
- Who, apart from the attesting witnesses, were present at the execution of the will and where, when and how this took place.
When we are asked to challenge the validity of a will drawn up by a solicitor we will generally make a Larke v Nugus request to that solicitor and ask for a copy of their will preparation file. This will often be very helpful in determining the strength of a legal challenge. It will often indicate whether the deceased was advised correctly by the solicitor, whether there were individuals present when instructions were given or when the will was executed and whether the solicitor applied the correct test for testamentary capacity.
