By Stuart Downey
If you are going to dispute a Will, or defend an allegation of a Will being invalid, you need information about the circumstances around the preparation of the Will, or Wills, in question so that you can decide the basis for your challenge or defence of the Will. In almost every case, this is going to involve a Larke v Nugus letter.
The Law Society updated its practice note: Disputed wills: guidance for practitioners on 19 July 2022. Back in 1959, the Law Society had given recommendations about how Will writers should deal with requests for a copy of the Will in a claim around the validity of a Will. Part of this was relating to early disclosure of relevant documents but also about the Will drafter preparing a statement of his or her evidence regarding the instructions for the preparation and execution of the Will and the surrounding circumstances.
Larke v Nugus: Background to the case
Larke and Nugus was a case in the Court of Appeal 1979. The Claimants were the executors of the testatrix’s Will. The validity of the Will was disputed by the defendants on the grounds of undue influence. Several requests were made by the defendants’ solicitors to the first Claimant, a solicitor, for a copy of the Will, but none was forthcoming.
The Court decided that the solicitor had not fully understood the implications of the Law Society’s recommendations. In litigation over a Will, the ruling principle was that every effort should be made by executors to avoid costly litigation and where there were suspicious circumstances surrounding a Will, it was right that full information should be given to those attacking the Will. In this case the copy requested by the defendants ought reasonably to have been provided.
From advice given 63 years ago by the Law Society, this case from 43 years ago is the mainstay of conduct of Will writers. The Law Society’s updated note is now much more detailed, dealing with Legal Privilege, Good Practice, Consequences, Risks of acting in disputes, Protecting the estate, and of course the inescapable GDPR, but the key message remains the same: sensible disclosure at an early stage is the best for all parties, keeps costs to a minimum and helps reduce the likelihood of court proceedings.
What is a Larke v Nugus letter?
Essentially, it’s the right way to ask for the information about a Will from those who drafted it.
The Association of Contentious Trust and Probate Specialists (ACTAPS) was established in 1997 for lawyers specialising in this area. Their Code of Conduct contains a precedent Larke v Nugus letter. It sets out the basis on which the person asking for the information is entitled to it (as set out above), but also sets out the information to be provided in the statement by the person who drafted the Will.
Do you need help with a Will?
Our specialist contentious probate solicitors can help you establish whether there are grounds to challenge or defend a Will. If you would like to discuss this area further, please call Stuart Downey, Partner in the Dispute Resolution team, on 01483 752746 and he will be pleased to assist.
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