Challenging a will – Larke v Nugus
When a professionally drafted will is in dispute, it is advisable to obtain some information about the circumstances surrounding its preparation and execution. A request can be made to the will drafting solicitor for a statement setting out the background and details relating to the instruction and execution of the will. This is known as a Larke v Nugus statement. It is also possible to ask for a copy of the solicitor's will file to support the statement.
The principle for a Larke v Nugus statement was set out in Larke v Nugus  2WLUK 153. In this case the claimants were concerned about the validity of the deceased's will and had concerns that it had been procured by undue influence. The claimants made several requests to the professional executor for a copy of the will, to no avail.
The Court held that executors should make every effort to avoid costly litigation and to provide information to the claimants. It therefore held that a copy of the will should have been provided to the claimants. The Court went further with this and later confirmed that the testator's solicitor may be called on to give a statement to any interested party about the circumstances of the execution of the will, even when they are not named executor, Larke v Nugus  WTLR 1083.
Whatever the ground or grounds for challenging the will, a key part of the process is the writing of a ‘Larke v Nugus letter’, which is sent to the solicitor (or will-writer) who prepared the testamentary instrument in question, be it a will or codicil. This letter should be prepared and sent at the earliest opportunity.
In Larke v Nugus  WTLR 1033 CA, the Court of Appeal set out what a solicitor should do when a will they made is challenged. The Court of Appeal stated that “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”.
A Larke v Nugus letter is sent in order to gather as much information as possible about the preparation and execution of the will. Much information can be gleaned from the will file, including, but certainly not limited to:
whether the testator had a long-standing relationship with the solicitor;
details of how and what instructions were given and who else, if anyone, was present;
to what extent, if at all, testamentary capacity was assessed, and if it was assessed, how it was documented;
whether or not the ‘Golden Rule’, as set out in Kenward v Adams (The Times, November 29, 1975) was complied with;
whether the testator appeared to being influenced by anyone, and if so, if any steps were taken to remove that influence so that the testator could be considered at the time to be acting of their own volition;
whether and to what extent earlier wills were discussed, and what attempts were made to discuss departures from that will/those wills, and what reasons the testator gave for making any such departures;
how the provisions of the will were explained to the testator; and
who, apart from the attesting witnesses, was present at the execution of the will, and where, when and how this took place.
Where circumstances lend themselves to scrutiny, such as the will being prepared on the testator’s deathbed, it would seem less necessary for the Larke v Nugus letter to expressly set out the basis for the scrutiny. However, this may be necessary where the suspicion is based on more subtle factors, as is often with the case with allegations of undue influence and / or lack of knowledge and approval, and where the solicitor would have been unaware of material facts which have since come to light. Indeed, even if it is possible, it may not be helpful to set out the allegations at this early stage, as it may jeopardise the opportunity to resolve matters amicably through objectivity and conciliatory communications between the parties.
The Law Society’s disputed wills practice note (available from the Law Society website at lawsociety.org.uk/practicenotes) sets out that Larke v Nugus letters are borne out of a situation where “a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat”. “Serious dispute” is not defined, and it is down to the recipient of a Larke v Nugus letter to determine whether they consider it to amount to a bona fide request. The solicitor will usually naturally have a limited knowledge of the testator and their life, so will have very little foreknowledge of the potential for a challenge to the will. In all but a tiny minority of cases, Larke v Nugus letters are sufficiently unmeritorious or vexatious for them to be ignored.
Larke v Nugus letters can be seen by those writing them as a way of testing the will-writer. However, it is worth remembering that there are other ways of carrying out a due diligence exercise against a will-writer, especially if they are a solicitor. This could include online checks of their specialisms, as listed on the ‘Find A Solicitor’ section of the Law Society’s website (lawsociety.org.uk/ findasolicitor) and / or on their own firm’s website, whether they are a member of the Society of Trust and Estate Practitioners and / or the Association of Contentious Trust and Probate Specialists, and whether or not they have a clear regulatory record, by checking the ‘Check a solicitor’s record’ section of the Solicitors Regulation Authority’s (SRA’s) website (sra.org.uk/solicitor-check/).
Larke v Nugus letters are not, of course, designed to be used by those investigating a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). Practitioners will appreciate, however, that while instructions may appear at the outset to be the basis of a claim under that act, a solicitor would be failing in their duty if they did not also investigate the merits of a possible challenge to the will. Therefore, in practice, it is possible that a Larke v Nugus letter is sent which elicits information which assists in a claim under the I(PFD)A 1975, though clearly this should not have been the basis for sending the letter.