Responding to a Lark v Nugus request – Addison & Anor v Niaz [2024]

A Larke v Nugus request is usually made if there are concerns surrounding the circumstances in which a will was made and executed. It can be a useful pre-action tool in obtaining information and documents before deciding whether to embark on expensive litigation in formally challenge a will.

The name originates from a case in 1979 (later reported in 2000) where the validity of the will was disputed on the grounds of undue influence and requests for a copy of the will were not met. The executors were criticised for failing to follow the Law Society recommendation (in place since 1959) which stated “when there is litigation about a will, 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.”

The Law Society has updated their Disputed Wills: guidance for Practitioners on 5 September 2023 (the earliest version dating back from 20 December 2019) which provides helpful pointers in how to deal with these requests.

What does a Larke v Nugus Request look like?

The Association of Contentious Trust and Probate Specialists (ACTAPS) provides a precedent letter of the standard questions you would normally expect in a Larke and v Nugus request which include:

• How long had you known the Deceased?
• On what date did you receive instructions from the Deceased?
• Did you receive instructions by letter? If so, please provide copies of any correspondence.
• If instructions were taken at a meeting please provide copies of your contemporaneous notes of the meeting, including an indication of where the meeting took place and who else was present at the meeting.
• What indication did the Deceased give to you that [he/she] knew that [he/she] was making a Will?
• Were you informed or otherwise aware of any medical history of the Deceased relevant to the issue of capacity?
• Did the Deceased exhibit any signs of confusion or memory loss? If so, please give details.
• To what extent were earlier Wills discussed and what attempts were made to discuss departures from the Deceased’s Will making pattern?
• Who, apart from the attesting witnesses, was present at the execution of the Will?
• Where and how did the execution take place?

You would also ask to see copies of:

a) documents and correspondence on the will file
b) previous testamentary documents and all documents on any previous will files
c) any additional information that will assist the court in the event the dispute is unresolved
d) a schedule of assets and liabilities
e) a copy of forms IHT200 / IHT400 (which are submitted to HMRC)

Response to a Larke v Nugus Request

The first thing to bear in mind is that a solicitor will owe a duty of confidentiality to their client (the testator) which will passes on death to their personal representatives (PR).

Where the PR is an executor (i.e. a person appointed by a will) then they have authority from the date of death. If they are an administrator (i.e. appointed on an intestacy or otherwise by the court) then their authority only starts from the date of the grant of letters of administration.

You can only disclose and respond to a Lark v Nugus request with the consent/authority of:

– the testator (whilst they are alive)
– their PR
– persons who are altogether all entitled to the estate (i.e. beneficiaries)
– an order of the court
– some statutory or other authority

If a solicitor is the only name executor they may be able to decide to waive both confidentiality and privilege.

The Law Society’s guidance has a useful decision tree to help determine whether someone has authority to disclose information but also what information can be produced.

The guidance encourages a solicitor to make disclosure of the contents of their file and to prepare a short statement setting out the circumstances of the drafting and execution of the will

You may be able to levy reasonable charges to comply with the request including photocopying charges.

Whilst there is no legal (or even regulatory) requirement to comply with such a request, there are potential costs implications as you have a duty to make every effort to avoid potentially costly litigation

In the recent case of Addison & Anor v Niaz (2024) the courts were called upon to adjudicate upon a Lark v Nugus request and provided clarification on the consequences.

Addison & Anor v Niaz (2024)

The case was heard by Chief Master Shuman in the Family Division of the High Court in with judgment being given on 5 August 2024.

The matter concerned the estate of Mr Derek Addison who was survived by 4 children.

On 12 February 2016, he made a will which appointed two of his children (James and Shirly) as executors. The will provided for his property (9 Anderson Road) to be divided up and then the residue to be divided between his children provided his wife predeceased him.

A second will was then made on 15 November 2021 in which he changed the executors to his other two children (Mark and Julie) and divided his estate into four equal shares for each of his children.

Derek died on 13 March 2023. James entered a caveat against the estate on 20 March 2023 suspecting undue influence and lack of testamentary capacity.

The applicants issued a summons under section 122 of the Senior Court Act 1981 which required the respondent to attend court to answer questions about the making of the will. Costs were also being sought against the respondent.

The respondent was the solicitor that took the will instructions and drafted the will.

A Lark v Nugus request was made on 27 March 2023 and chased on 11, 20, 26 April, 10, 11, 22, 31 May and 8 June 2023.

The respondent finally provided their response on 7 July 2023 (with the will files and a witness statement) having stated that they would need consent of the executors to do so. The respondent also raised mental health difficulties to justify the delays.

The judge decided that the response was inadequate; being a very short summary and lacking in the usual detail expected in Lark v Nugus form. There were inconsistences between the witness statement and attendance note raising questions which were not answered until she came before the judge in the application hearing.

They also went on to criticise the delays in providing the response:
The delays in this case have been lamentable and have not helped these parties one jot in terms of trying to reach a resolution to the matter.

They confirmed that whilst it was good practice to seek an executor’s consent, it was not strictly necessary and solicitors should respond even if consent is withheld (as long as the executor is notified of this in advance). If solicitors are uneasy about doing so, they themselves can seek guidance from the court by making an application under section 122 or 123 of the Senior Courts Act 1081.

Costs of £4,774.50 was awarded (against the sum of £9,290.30 sought)

However, given that the children would have in effect had the same amount of inheritance under both wills, it is questionable what such an exercise ultimately achieved other than unrecoverable legal costs and a delay in the administration process.

Alternatives

A Lark v Nugus request is not the only way to get this information or the documentation.

You could consider a Subject Access Request under the Data Protection Act 2018.

Pre-issue, there is possible assistance under CPR rule 31.16 whereby the court has power to order pre-action disclosure of relevant documents from a potential party. However, this rule does not authorise the court to override a valid claim to legal professional privilege.

If the will preparer is not also a named executor, then it is unlikely that the will preparer would be a potential party to proceedings – and, as such, CPR 31.16 may have no relevance.

If a probate claim is issued then the court will require disclosure under the CPR 57.5.

In addition section 123 of the Senior Courts Act 1981 permits a probate registrar to issue a witness summer under the Non Contentious Probate Rules requiring a person to lodge a will or codicil at the Probate Registry.

Final Words

On the one hand you want to avoid using a Lark v Nugus request as a fishing expedition and they should only be used when there is a serious dispute about the validity of a will. On the other hand, this is a powerful tool to flush out missing information which could avoid costly litigation.

Most practitioners are mindful of the requirement to co-operate in complying with such a request and this case now provides concrete examples of the consequences of failing to do so adequately and in a timely manner.

If you are facing concerns about the validity of a will, early legal guidance can help protect your interests and reduce the risk of escalating costs. Contact our specialist contentious probate solicitors on 0330 822 3451 to get clear advice tailored to your situation.