Oh no, I have received a Larke v Nugus letter – what do I do?
A guest article by Meridian Private Client’s Senior-Associate Emma-Louise Green
As contentious probate solicitors, we often need to obtain more information about the Will making process to be able to properly advise our clients. One way that such information can be obtained is by sending a Larke v Nugus letter to the professional who drafted the deceased’s Will. But what should you do if you receive one?
A preliminary point to bear in mind is that you should consider immediately informing the executors and beneficiaries that you have received a Larke v Nugus letter as they may want to input into how you deal with it. If contentious probate solicitors have already been instructed by the executors and/or beneficiaries, they may wish you to proceed in a certain way. If contentious probate solicitors have not already been instructed, the beneficiaries can be put on notice of the potential claim so that they can consider instructing someone to assist them in defending the challenge and inputting into the response.
In the 1979 case of Larke v Nugus, the solicitor who had prepared the Will refused to provide any information about the Will making process to the party who believed that the Will was invalid. The dispute went all the way to trial and Brandon LJ said the following:-
“Where a serious dispute arises to the validity of a Will, beyond the mere entering of a caveat and the solicitor’s knowledge makes them a material witness, 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.”
There are various elements from this statement that require some consideration. Firstly, Brandon LJ refers to solicitors making available a statement of their evidence. There is arguably a question mark therefore as to whether or not the principles of Larke v Nugus apply to non-solicitors who prepare Wills. I believe that they do. I think that it would be a risky strategy to employ to argue that you are not obliged to provide any information about the Will making process because you are not a solicitor. Ultimately, that could force the interested party to make an application for disclosure and you could be criticised and perhaps penalised in costs for forcing such an application to be made.
The second point to note is that the principles apply regardless of whether or not the solicitor in question is actually acting for the parties that are propounding the Will. You cannot therefore refuse to provide the information just because you were only instructed to prepare the Will but are not acting in the estate administration.
The third point to note is that Brandon LJ specifically states that the principles apply where there is a serious dispute as to the validity of the Will beyond the mere entering of a caveat. If you receive a Larke v Nugus letter that merely refers to the case and asks for information, you could consider responding asking them to particularise why their clients contend that a serious dispute arises as to the validity of the Will. Ideally from your perspective though, you may prefer for the beneficiaries to take the lead on making these enquiries because they are the individuals with the financial interest who will be materially impacted by a successful challenge to the validity of the Will. It could be slightly tricky for contentious probate solicitors to answer questions about why they believe there is a serious concern as to the validity of a Will when they are first instructed because they are in the information gathering stage. However, they should be able to refer to at least one of the grounds of challenge to satisfy you that they have some legitimate questions. For example, they may reply and say that the testator had two children and had always treated them equally but the Will that they require more information about leaves everything to only one of the children who had moved in to look after the testator before their death. They believe that the testator may have been unduly influenced in the making of their Will. Such an explanation would probably be enough to satisfy you/the beneficiaries that there is a serious concern about the validity of the Will. If on the other hand you/the beneficiaries received a response indicating that they believe the Will to be unfair, they are not particularising any serious concern as to the validity of the Will and so the principles of Larke v Nugus may not apply. Ideally, it would not be you making that decision but rather the beneficiaries and their legal team as it could be a contentious position to adopt and you do not want to open yourself up to criticism if it could be avoided.
The fourth point to note is that Brandon LJ refers to the solicitor making information available to anyone who is concerned in the proving or challenging of the Will. Someone has to have sufficient standing to be able to challenge the validity of a Will i.e. be a beneficiary under the Rules of Intestacy, the Will in question or a previous Will. If someone does not have standing, they are not entitled to any information.
So, once you are satisfied that the principles of Larke v Nugus apply, you then need to consider exactly what information to provide. Generally, Larke v Nugus letters list numerous questions that they want the professional to answer. One word answers are acceptable. There is no obligation on the professional to provide a very long narrative. Indeed, from your perspective, less is more.
You also need to consider what documents to provide. You should provide attendance notes from the meeting in which instructions were given and the meeting where the Will was signed. There is no obligation to provide the full file and, indeed, you should not provide the full file without the executors’ consent. The full file belongs to the executors as they are standing in the shoes of the deceased. As I have mentioned above, when you receive a Larke v Nugus request, you should consider informing the executors. They may liaise with the beneficiaries under the potentially disputed Will and the solicitors acting for those beneficiaries may want to input into the response. Sometimes, there may be tactical reasons why the solicitors want the full file to be released or for more expansive answers to be provided.
Fairly recently, it has been confirmed that charges can be rendered by solicitors for responding to a Larke v Nugus request. The position with regards to will writers is more uncertain. If you are going to render a charge, you should inform the other party in advance and obtain their confirmation that they will discharge your invoice within a certain period of time of receiving your invoice. The charge should be reasonable and proportionate with the amount of work that is actually involved in responding to the request.
Finally, you should consider if you need to inform your insurer that you have received such a request. A Larke v Nugus request is not an allegation that you have done anything wrong and nor should it be seen as a precursor to a negligence claim. Some insurers however do request that they are informed as they want to input into your response and be informed of how matters progress. Other insurers do not take an interest at the Larke v Nugus stage and instead only take an interest when formal notice of a professional negligence claim has been sent.
As a specialist contentious probate team, we act for individuals both propounding and challenging the validity of a Will. We also advise executors on their position and what stance they should be taking if they are caught in the middle of a dispute to which they are neutral. For more information about the services that we provide, please do not hesitate to contact Emma-Louise Green on 01675 444 881.
