For many solicitors and Will drafters like myself, a Larke v Nugus request is becoming a more common occurrence as Legal disputes over wills and inheritance are on the rise. Intestacy (dying without a Will), poorly drafted Wills and inadequate planning are growing causes of family disputes, especially where step-families are involved.
A Larke v Nugus is a request made pursuant to the principles set out in the case of Larke v Nugus (1979) 123 SJ 327. This request is often one of the first steps taken by contentious practitioners when investigating a potential claim. This provides that the professional who drafted the Will should provide information about the circumstances surrounding the drafting and execution of the Will. This is despite any obligations of confidentiality the drafter may owe to the Personal Representatives.
It is an essential tool to establish the circumstances surrounding the Will as disappointed beneficiaries often enthusiastically accuse family members of undue influence and fraud. Capacity issues are also more common largely due to an ageing population, the rise in mental health issues, such as dementia and Alzheimer’s, and a greater awareness of mental health issues in general.
The request will usually come in the form of a fairly basic and neutral letter asking a list of questions, such as:
“Did the deceased exhibit any signs of confusion or loss of memory?”
“What indication did the deceased give to you that (s)he knew (s)he was making a will?”
“Who, apart from the attesting witnesses, was present at the execution of the Will?”
A request for a copy of the full file of papers is usually also requested.
Where a serious dispute arises as to the validity of a Will, the Will drafter’s knowledge makes him or her a material witness. The Will drafter should make available a statement of his or her evidence regarding the execution of the Will and the circumstances surrounding it to anyone concerned in the proving or challenging of that Will.