If a good friend or relative has recently died and you think there may be a question mark over the validity of the will, what should you/could you do? It is often difficult to assess and understand whether the will may be invalid without having sight of the solicitors’ file who prepared the will on the testator’s behalf. But do not despair, help is at hand! You can consider sending a letter to the solicitors seeking a copy of the will file, known as a “Larke v Nugus request” following the case of the same name back in 1979.
Larke v Nugus
The claimants in this case were the joint executors of the will of Elsie Moss with one of them, Arthur Larke, being the solicitor who had prepared her last will.
Under an earlier will, Elsie had left her estate to her niece, Henrietta, the defendant in the claim. The current will left her estate to her carers, Mr and Mrs Lucas, who had only been working for her for less than four months prior to her death.
Henrietta made five requests to Mr Larke for a copy of Elsie’s will during the period August to December 1974. Having been ignored, she entered a caveat preventing the executors from obtaining a grant of probate in January 1974.
Notwithstanding his duty to remain neutral as an executor, Mr Larke therefore issued proceedings against Henrietta in July 1974 seeking to prove the will. Henrietta counterclaimed on the grounds of lack of knowledge and approval of the will and undue influence.
In November 1976 her solicitors wrote to Mr Larke once again asking him to provide a statement regarding the circumstances surrounding the execution of the will but he failed to provide one. By December 1977 the facts had become clearer and Henrietta withdrew her claim. There remained outstanding, however, the question of costs.
Notwithstanding the fact that Henrietta did not succeed with her counterclaim, the court of appeal order that Mr Larke’s costs should be paid by the estate rather than her, thereby leaving him exposed to a negligence claim by the beneficiaries of the estate. In reaching their decision, the Lord Justices commented:
“Where a serious dispute arises as to the validity of the will, beyond the mere entering of a caveat and the solicitor’s knowledge makes them a material witness, then the solicitor should make available a statement of their evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will, whether or not the solicitor acted for those who were propounding the will.”
Responding to a request
Some 40 years later what is considered best practice?
Guidance from the Law Society suggests that in cases where requests are not made on a joint basis between executors and beneficiaries, they should only be made “where a serious dispute arises as to the validity of the will”. This can be difficult for someone making a request as until they have had sight of the solicitors’ file it may be difficult to justify that there is a “serious dispute”. Nonetheless, will writers and solicitors should feel confident in not responding to any such requests from disgruntled beneficiaries who appear just to be on a “fishing expedition”.
However, this itself needs careful consideration as it appears to conflict with the Law Society’s guidance as set out in the Contentious Probate Handbook published in 2016 which states, when considering the duty to disclose information, that “failure to reply to a Larke v Nugus request is a breach of professional duty and may result in a wasted costs order being made against the solicitor.
It will be necessary therefore for will writers and solicitors to tread carefully in assessing those cases which merit a positive response to any such request, particularly in circumstances where the solicitor who prepared the will is not also the executor or one of the executors of the testator’s estate.
Making a request
And what of the person making the request, what should they do?
Whilst there are various precedent letters available, one size does not really fit all and careful consideration should be given as to the questions to be put to the will writer.
Typically, they will include the following:
How long have you known the deceased?
What indication did the deceased give to you that they knew they were making a will?
Were you aware of the deceased’s medical history?
Was anyone else present when you took instructions?
Did you know about the deceased’s family structure?
However, there will be other occasions when more specific questions will be required. For example, if there are concerns about whether the testator had testamentary capacity at the time of the execution of the will, it is likely questions will need to be asked regarding the steps that the will writer took to undertake any testamentary capacity assessment. Did the will writer follow the so-called Golden Rule and arrange for a medical adviser to witness the testator’s signature and/or to give expert opinion as to whether the testator had testamentary capacity?
Alternatively, there may be concerns regarding a testator’s knowledge and approval of the will due to, for example, a language barrier or poor sight or hearing. Specific questions will therefore need to be asked of the will writer as to their knowledge of these issues and if so, how they were dealt with.
Also, what about a previous will or wills? If there is a previous will or wills which followed the same pattern with the last will being significantly different in its contents, further questions will need to be included as to the will writer’s knowledge of any previous wills and questions asked and instructions given as to why the testator is choosing to leave their estate to someone new, particularly if the beneficiary in question is not a member of a family but perhaps a carer or other medical adviser or a friend.
If all else fails!
Despite the somewhat conflicting advice regarding a will writer’s duty to reply to a Larke v Nugus request, usually a response will be received without question, it being recognised and understood that the person making the request is entitled to receive a copy of the file and information relating to the circumstances surrounding the execution of the will and further, that in some cases it will mean an end of the matter. Often it is the case that once the solicitor’s file and response to questions posed has been reviewed, any “suspicious circumstances” which may have existed fall away and no further action is taken.
However, if all else fails then it is open to the person making the request to make an application under Section 122 or 123 of the Senior Courts Act 1981 (“the Act”) which provides for any person with knowledge of a testamentary document to appear before the court to answer any question relating to the document concerned and, if appropriate, to produce the document to the court. Section 123 also gives the court power to subpoena such a person’s attendance at court in order to produce the document. Both powers are available whether or not there are any other subsisting legal proceedings. If a will writer refuses therefore to respond to a Larke v Nugus request, proceedings could be brought under the Act solely for the purposes of producing a copy of the testamentary document and answering questions in relation thereto. Depending on the outcome of those proceedings, it may be no further action would be brought in relation to the deceased’s estate. In these circumstances, however, the will writer would almost certainly have an adverse order for costs made against them!
Whilst the guidance regarding responses to Larke v Nugus requests is conflicting, will writers should be wary of refusing to answer the same save where it is obviously a “fishing expendition” and subject always to ensuring that they are not falling foul of any breach of client confidentiality duties.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.