There are five grounds for challenging the validity of a Will. But what are the practical steps a party should take when considering a Will challenge? First, there is entering into a “caveat”. Then there is the “Larke v Nugus” request.
We covered caveats in a previous article, so this article will focus on preparing and sending a Larke v Nugus request. This is a letter sent to the Will drafter (usually a solicitor or Will-writer) for information as to the preparation and execution of the Will.
What is a Larke v Nugus request?
It is a request that can be made to the Will drafter asking for their recollection of the circumstances surrounding the making of the Will.
The 1979 case of Larke v Nugus established that where there was a potential dispute over the validity of the Will in question, it was incumbent on the executors to make every effort to avoid costly litigation. One of those measures was to provide full and frank information as to how the Will came to be made.
What form does the Larke v Nugus request take?
A letter. There are a number of different precedent letters. What they all have in common is the substance of questions asked, aimed at:
- Establishing how long the Will drafter had known the deceased;
- How and when were the instructions for the new Will taken;
- What steps were taken to ensure the Deceased understood what they were doing; and so forth.
Frequently, the request will also ask for a full copy of the Will drafter’s file.
What form does the response take?
The response can take the form of a letter enclosing relevant excerpts of the Will drafter’s file, or a more formal statement with these documents exhibited.
What about client confidentiality owed to the deceased?
This is an important consideration. A solicitor who has drafted a Will for a client owes them a duty of confidentiality which survives the client’s death.
If a Will drafter refuses to provide a statement, there is a procedure where they can be compelled to give evidence.
Ideally the executor should give consent to provide the information requested (if necessary). However, if they do not, the Will writer must satisfy themselves there is a serious dispute regarding the validity of the Will before they respond. If the executor refuses to authorise the Will drafter to provide details of the instructions, they could find themselves exposed to possible costs sanctions if court proceedings ensue.
Concluding comments
Making a Larke v Nugus request is one of the most important preliminary steps and whilst there are a number of precedent letters available, making sure that the questions asked are correctly tailored to the fact in hand can be crucial to getting a claim off the ground.
Moreover, interpreting the often nuanced response can mean the difference between exposing a line of enquiry and missing critical evidence. For that reason, it pays to invest in specialist advice at the outset if you have concerns over a Will.