How to make a Larke v Nugus Request

The Law Society has provided helpful guidance to assist solicitors in determining whether to provide such information upon receipt of a request. Such guidance states:

“Where a serious dispute arises as to the validity of a 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.”

On 21 February 1979 the Court of Appeal endorsed the Law Society guidance in the case of Larke v Nugus (1979) later reported at [2000] WTLR 1033. In this case the testator’s will was challenged, and the matter went to trial. In the leading judgment it was stated:

‘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.”

The Court of Appeal concluded that had the solicitor executor disclosed all information surrounding the preparation of the will, the case would likely not have gone to trial. This case therefore made clear that to save costly litigation, solicitors should follow the Law Society’s Guidance (which has been around since 1959) that full information should be given to anyone seeking to challenge the will, if possible.

A copy of the practice note can be found at Disputed wills: guidance for practitioners | The Law Society.

The practice of writing to solicitors who drafted the will in question to obtain all information surrounding the preparation and execution of the said will is, therefore, known as a Larke v Nugus Request.  The main purpose of the Larke v Nugus Request is to prevent money being spent on what may be considered futile and costly litigation by promoting the early disclosure of relevant documentation.

After deciding to make a Larke v Nugus Request, one should then consider ‘What should I include in my Larke v Nugus Request?’  This is often very case specific and will depend upon the possible reasons someone is seeking to challenge the validity of the will. For example, if one were questioning the validity of the will based upon the testator’s mental capacity at the time the will was made then the Larke v Nugus Request should include questions surrounding the deceased’s health at the time the will was made as well as questions as to whether the will writer had any concerns as to the deceased’s capacity at the time the will was made. Furthermore, the request will often include a request for a complete copy of the will file, or certainly copies of any relevant documents.

It should be noted that solicitors are able to make a reasonable charge, to include photocopying charges, in responding to such a request.

The Association of Contentious Trust and Probate Specialists, known often as ACTAPS, have provided a helpful precedent Larke v Nugus Request in their Code of Conduct which can be found at Code of Conduct – ACTAPS.