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04th May 2020

Preparation and execution of the last Will

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How can you find out about the circumstances surrounding the preparation and execution of the last Will? Sadly, many disappointed beneficiaries are surprised to learn of the contents of their deceased loves ones Will; either expecting to have been named in the Will, or to have expected to receive a greater share than that which has been provided for them. Many are therefore upset, angry or confused, because they are no longer able to ask the Deceased, “why have you made your Will in this way?”

When it comes to investigating the merits of pursuing a successful challenge to the validity of a Will, there is often a need for information about the circumstances in which the last Will (in dispute) was made. Where a Will is professionally prepared by a solicitor, that solicitor may be requested, in what is known as a ‘Larke v Nugus letter’, to provide information about a Will which they have prepared.

What is Larke v Nugus?

Larke v Nugus was a Court of Appeal case dating back to 1979, within which the validity of a professionally prepared Will was challenged. The claimant’s solicitors requested pertinent information relating to the preparation of the Will, however the solicitor who drafted the Will refused to provide such information. As a result, the Claimant proceeded to issue their claim at Court. Although the Claimant lost their claim, the Court refused to order the claimant to pay the costs of the claim as the losing party, because the solicitor who prepared the Will, could have prevented a full trial, had they made available the information requested at an early stage.

The decision of the Court was that “when there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will as to how the will came to be made”.

What is a Larke v Nugus request?

Following the above case, a Larke v Nugus request is simply a request in writing to the professional who prepared the Will, for a statement detailing the circumstances surrounding the preparation and execution of the disputed Will.

When should I make a Larke v Nugus request?

Where there is a serious dispute about the validity of a Will, as opposed to a mere ‘fishing expedition’, the first step in any potential challenge, is to make an enquiry of the circumstances surrounding the preparation and execution of the last Will.

A Larke v Nugus request, should therefore be one of the very first investigations undertaken, as soon as a dispute arises.

What can I ask in a Larke v Nugus request?

A Larke v Nugus request typically takes the form of a letter, within which a specific list of questions arising from the 1979 case are asked of the will drafter. Some of the questions include the following (not exhaustive):

  • How long the firm had known the Deceased?
  • Who introduced the Deceased?
  • When did the firm receive instructions from the Deceased?
  • How were those instructions received?
  • Was any medical evidence of capacity sought in accordance with the Banks –v- Goodfellow test?
  • To what extent were earlier Wills discussed and what attempts were made to discuss departures from the Deceased’s earlier Will making pattern?
  • How were the provisions of the Will explained to the Deceased?
  • Where, when and how did the Will execution take place?
The Law Society’s Practice Note on Disputed Wills states that the professional should provide a statement addressing the questions raised and disclose any relevant documents within their possession, within a reasonable period. Typically, such documents would include copies of the attendance note records made following meetings with the Deceased and any letter of wishes.

Why make a Larke v Nugus request?

The information disclosed following a Larke v Nugus request can be very revealing and assist in determining whether there is merit in incurring further time and costs, investigating the validity of the Will further. For example, it may be revealed that a testamentary capacity test was undertaken by a medical expert, prior to the execution of the Will, confirming the testator had capacity. Or, details of an earlier Will may come to light, which may determine whether or not you actually have legal standing to bring a Will challenge.

Finally, quite often simply knowing the Deceased’s reasons for choosing to write their Will in a certain way, offers the disappointed beneficiary a greater understanding and in some cases, the closure they are seeking.

Get in touch

If you are considering making a Larke vs. Nugus request as part of a Will dispute, please get in touch with Hewitsons today, or call 0330 311 0885. A member of our team will be happy to arrange a free 30-minute consultation between you and one of our experienced solicitors.