Where concerns arise regarding the validity of a will, parties will usually want information about how the will was made. A request can be made of the executors because it's the executors that can waive privilege on behalf of the deceased. In addition, enquiries can be made of the solicitor or other will drafter by making a Larke v Nugus request.
The obligations of a solicitor or will drafter to provide a Larke v Nugus request was put centre stage last year in the Addison & Anor v Niaz case, when the children of the late Mr Addison went to court over concerns regarding the validity of their father's will.
In this article we define a Larke v Nugus request, provide a background to the Addison & Anor v Niaz case and reveal the court's decision. We also provide key takeaways for solicitors and will drafters.
A Larke v Nugus request is typically a request for the will drafter to answer a set of questions about the circumstances surrounding the making and signing of the will. If a solicitor or will drafter receive a Larke v Nugus request, they should provide answers to those questions raised and disclose any relevant documents to support their response, such as notes of meetings with the deceased recording instructions given, and how the will was executed. This is considered best practice and can often assist in resolving potential disputes at an early stage. It's also considered good practice for the will drafter to obtain the consent of the executors to the disclosure of such information.
Two of Mr Addison’s children had concerns regarding the validity of Mr Addison’s will, and raised queries with the will drafter by way of a Larke v Nugus request. After four months of numerous chaser emails and telephone calls, and requests from the will drafter for more time to respond, the Larke v Nugus response was finally provided, along with the will file.
Unfortunately, the response did little to assist Mr Addison’s children in resolving their concerns. The letter from the will drafter amounted to nothing more than a short summary of events, and the will file was extremely limited with the attendance note of the meeting with Mr Addison recording only the client name, date and time engaged.
Unsatisfied with the information provided, Mr Addison’s children applied under section 122 of the Senior Courts Act 1981 which allows applicants to compel the will drafter to attend court to provide a comprehensive explanation and to be cross examined on their evidence.
The will drafter provided a witness statement but in her oral testimony in court, inconsistencies arose between the information provided in the Larke v Nugus response and information given in her witness statement. This aroused further suspicion and raised questions in respect of the will drafter’s honesty and thoroughness, but the oral testimony did provide some clarity as to the circumstances surrounding the preparation and execution of the will.
The court concluded that Mr Addison’s children were justified in bringing the application and held that the will drafter’s response to the Larke v Nugus request was inadequate and delayed. The will drafter was therefore ordered to pay the costs incurred by Mr Addison’s children in bringing the application, to be assessed by the court. Mr Addison’s children subsequently recovered approximately 50% of their incurred costs.
This case is a reminder to solicitors and will drafters of the importance of following best practice in providing sufficient information to address will validity concerns in a timely manner, and a warning of the costly consequences that they may face if they fall short.
If you have concerns regarding the validity of a will, contact our experienced disputed wills and trusts team.
