What is a Larke v Nugus Letter

A letter received by the executors requesting details of the testator’s will, and the history behind it.

Sometimes in the administration of the estate persons aggrieved by the contents of a will, or indeed being left out by the strict rules of the law of intestacy, will seek legal advice. The likely hood is that their legal representatives will suggest sending to the executors, or more likely the firm representing the executors in the administration of the estates, a letter what is known as a ‘Larke v Nugus’ letter, which relates to the challenge to a will.

These types of requests are often issued in connection with contentious probate administrations, and effectively the letter is to establish whether and why a will should not stand, and seeking answers as to what can be done about it.

A recent report suggested that one in four wills or estates are now contested, which is a substantial increase in the estate administration contentious work over the last few years.

What is a Larke v Nugus Letter for?

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 legal representative (or will-writer) who prepared the testamentary document in question, be it a will or codicil. This letter should be prepared and sent as soon as possible.

In Larke v Nugus [2000] WTLR 1033 CA, the Court of Appeal set out what a legal representative 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”.

Larke v Nugus letter is sent in order to learn as much information as possible about the preparation and execution of the will. The will file contains a wealth of information that can be obtained, including but not restricted to:

  • whether the testator had a long-standing relationship with the legal representative;
  • 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 investigation, 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 investigation. However, this may be necessary where the suspicion is based on more subtle grounds, as is often with the case with allegations of undue influence and / or lack of knowledge and approval, and where the legal representative would have been unaware of important details which have since come to light. In fact, even if feasible, it may not be beneficial to set out the allegations at this early stage, as it may endanger the chance to resolve matters amicably 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 the result of an instance in which “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 ascertain if they believe it to be a legitimate request. Since the testator’s life and background are typically unknown to the legal representative, there is little chance that the legal representative will be aware of a challenge to the will. In all but a tiny minority of cases, Larke v Nugus letters are sufficiently meritless 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. This could include online checks of their specialisms, 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.

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 legal representative 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 evokes 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.

How should a legal representative respond?

For the recipient of a Larke v Nugus letter, comprehensive and clear guidance is set out in the Law Society’s disputed wills practice note, dated 6 October 2011. The practice note states the following:

“When requested, in what is known as a Larke v Nugus letter, you should provide a full statement of evidence as to the preparation of the will, and the circumstances in which it was executed to anyone who has an interest in the dispute, whether or not you are acting for any of the parties:

“You should also, with the consent of any third-party personal representatives, make available a copy of requested documents.

“The quickest and easiest way of complying with such requests will often be to copy the contents of the will file.”

But in cases where negligence is implied, even though it may not be appropriate for it to be, in a Larke v Nugus letter, the practice note states that the recipient should “inform any lay executors and beneficiaries of the will that they may wish to take independent advice as to whether or not the will was negligently drafted”.

Practitioners must be clear that the authority of the executors must be acquired before the contents of the will file are revealed (the practice note also, unhelpfully, states the position before Larke v Nugus, when this was not necessarily the case).

Where undue influence and / or lack of knowledge and approval is alleged, it is worth remembering that the sender of a Larke v Nugus letter is, among other things, to use a well-known phrase from Barry v Butlin (1838) 2 Moo PCC 480, seeking to “excite the suspicion of the court”, and shift the burden of proof to satisfy the court as to its validity onto those seeking to uphold the will. One of the ways to do this is to show that the will is a departure from previous will-making patterns, and that the will is not rational from the face of it. This should be borne in mind when responding to a Larke v Nugus letter, as the response is the recipient’s opportunity to, as far as it is possible, keep the burden of proof firmly on the challenger. In general, notwithstanding the inevitably accusatory nature and tone of a Larke v Nugus letter, the recipient should see these letters as a means of showcasing their expertise and experience in this field.

While concurrent attendance notes will arguably carry the most weight, the legal representative can, and indeed may be called upon to, provide statements as to the circumstances surrounding the preparation of the will, and in particular, what steps were taken to identify the presence of testamentary capacity, and the absence of undue influence. An attending legal representative will almost always be regarded by a court as a weighty and persuasive witness.

It is important to remember that a Larke v Nugus letter does not, in itself, automatically amount to a ‘complaint’; the recipient must judge for themselves whether they consider it to amount to one. Guidance can be sought from the Law Society’s complaints management practice note. If in doubt, however, it would certainly be good practice to treat the letter as a complaint, and to record it in the firm’s complaints register.

A similar view must be taken with regard to informing the firm’s insurers, in that, if the Larke v Nugus letter amounts to an allegation of negligence, then a report must be made. However, it is worth emphasising that, again, the letter must be judged on its own facts, and does not, in itself, amount to an allegation of negligence. Naturally, the conditions of the firm’s specific professional indemnity coverage should also be mentioned.

Who covers the expenses?

The main ideas are still relevant: disputes should be resolved without litigation, which should be seen as a last resort, as well as an open and prompt information sharing to allow the parties to do a “cost/benefit” analysis as soon as possible.

It is clear that the “conduct of the parties” in relation to the general pre-action protocol referred to will include the way in which a party dealt with Larke v Nugus disclosure requests. A failure by a legal representative to respond properly to a Larke v Nugus letter is not only a violation of professional obligation, but it may also have unfavourable financial repercussions. In addition to cost orders between the parties, this could also involve a wasted costs order against the company for not providing the requested information.

In terms of the actual costs in complying with a Larke v Nugus request, the respondent is entitled to levy a reasonable charge for photocopying.

While the Law Society’s disputed wills practice note states that “[a]s a potential witness in proceedings, you may not charge for time spent compiling the statement or documents, however, a reasonable charge may be made for photocopying”, the SRA has specifically confirmed that there is nothing in its Code of Conduct which prohibits a legal representative from making a reasonable charge in complying with a Larke v Nugus request.

What happens if there is no reply?

It’s possible that a Larke v. Nugus request will not receive a response. This may be due to the destruction of the relevant will file (in which case the legal representative would still be required to provide a statement regarding the circumstances surrounding the preparation of the will), or it may be the result of the lay executors’ refusal to consent to disclosure due to their possible ignorance of the potential consequences of doing so.

For any cause, the court can order the pre-action disclosure of documents in order to reduce expenses, assist in resolving the dispute without the need for formal actions, or dispose of the anticipated proceedings fairly. However, this would involve an application to the court.

How should the executors’ consent be requested?

When a Larke v. Nugus request is received, a dilemma could arise regarding the extent to which the will’s drafter should advise the executors on whether or not the will file should be disclosed and whether or not a claim arising out of that file. As was previously mentioned, if it is determined that the testator lacked sufficient testamentary capacity, a professional negligence action may be brought. This is especially the case if the legal representative disregarded the “Golden Rule” or neglected to perform more basic capacity checks, or if the testator was subjected to undue influence and the legal representative did not respond appropriately to this undue influence.

The legal representative should refer the executors to independent advisors when professional negligence is specifically alleged, implied, or it is fair to assume that it would be at a later time. Failing to do so would place the legal representative in a dire and obvious conflict of interest.

If you would like any further advice, please do not hesitate to contact us:
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