15/11/22
Larke v Nugus requests can come as a massive shock to many professionals who haven’t come across them before. However, they are nothing to be concerned about, provided you know what they are and how to handle them.
Here we outline the basic principles of a Larke v Nugus request and what you should do (and not do!) if you receive one.
The case of Larke v Nugus (1979), reported in 2000, established that the representatives of the parties to a dispute can request information from a Will Writer about the Deceased, the creation of their Will and the surrounding circumstances.
A Larke v Nugus request simply asks for a statement from whoever took instructions from the client regarding the surrounding circumstances of the Will, and the instructions that were taken.
What does a Larke v Nugus request look like and what is it looking for?
The format of the request is generally a list of questions with a request for a statement and the Will file(s).
The solicitors who have requested the Larke v Nugus will be looking to check whether:
• The golden but tactless rule was applied (as set out in the judgement of Kenward v Adams [1975])
• The client had testamentary capacity
• The client had knowledge and approval
• There was any undue influence (coercion)
• There was any fraudulent calumny (poisoning of the mind)
• There were any execution irregularities
• The Will was ever revoked
• Fraud or forgery occurred
Do I have to respond?
The basic answer to this question is yes. However, there are a few factors you should consider when deciding whether to respond or not:
• Is the request legitimate?
• Is it just a fishing expedition?
• Does the claim have merit?
• Have they waived privilege?
• Does reasonable suspicion exist?
• Have you notified your PI insurance?
There are methods of enforcement if you refuse to answer the request, which are set out in S122 Senior Courts Act 1981 and Rule 31.16 Civil Procedure Rules.
Don’t ignore a request as this can result in serious cost implications for you. For example, if a claimant is forced to issue proceedings to get information from you that you were legally obliged to provide, a court may be inclined to order costs against you. At CTT Group, we have seen examples of this in the past when professionals have failed to respond to requests.
What to do when you receive a Larke v Nugus letter
Deal with any request honestly, completely and promptly. Don’t panic! As they can be sent in a wide range of circumstances, they are a frequently used mechanism by disgruntled beneficiaries and sometimes just beneficiaries or would-be beneficiaries. Expect that you will at some point receive one of these types of requests.
In a lot of cases, if dealt with correctly, it may be the case that once you respond you will hear nothing further. The temptation can be to rush to defend yourself, but you need to remember to take a more neutral stance. Do not engage with beneficiaries ‘on different sides’ as this could cause issues later. Ask for all correspondence to be in writing, and give yourself time to consider your responses.
How to avoid any issues following the request
• Make sure you have a good Will file
• Think ahead when taking instructions – what potential challenges could there be later?
• Use the Countrywide Legacy ‘Risk Trilogy’: Will Clarity Statement, Execution Statement, and Client
Disclaimer. Having all of these documents protects you in the event that a claim is brought against an estate you prepared a Will for, and the Will Clarity Statement means you have a ready-prepared Larke v Nugus Statement in the event you receive a request.
Handle Larke v Nugus requests with ease
Larke v Nugus requests might not be something you had even heard of before reading this article, but hopefully you are now armed with the knowledge needed to confidently deal with one.
Taking thorough instructions is good practice in any event, whilst also ensuring as far as possible that no one can bring a claim against you for negligence in the event that they are unhappy with the content of the Will.
If you are a member and have any further questions relating to points made in this article, please contact The Client Care Team, who can assist with all aspects of a Larke v Nugus request should you ever receive one.
Alternatively, you can sign up for membership today and enquire about our Legacy Software so that you can protect yourself and your client as part of the Will making process. Find out more about our will writing software here.
For more information about how CTT Group can help you be prepared to deal with Larke v Nugus request confidently and how you can protect yourself from potential claims, join our online training event:
https://www.eventbrite.com/e/know-your-client-risk-capacity-identity-in-virtual-instruction-taking-tickets-463499327967.
Written By