Dec 21
When a good friend, relative or loved one passes away, it is not uncommon for many to contemplate what decisions the Deceased may have made as to the ultimate destination of their assets and life savings in their will. Who will benefit from the Estate and have fair and understandable decisions been made?
Unfortunately, it is commonly the case that someone feels unfairly treated and deeply upset at the final expressed wishes of the Deceased. The question they frequently pose is can they do anything about it and find out why the Deceased made the decisions they did?
The starting point is that nobody has the right to an inheritance however close the relationship to the Deceased may have been. However, the law reflects the fact that the starting point may throw up unfairness and there are a number of grounds for contesting a will. For example, if there may be concerns that the Testator did not have the mental capacity to make a will or was the subject of undue influence. One of the most common grounds for contesting a will are circumstances in which the financial provision made by the Deceased for those left behind is not seen to be reasonable. For example, if the person was married, co-habiting or perhaps dependent upon the Deceased in some way.
The key issues in such cases are the circumstances surrounding the will being made and the Deceased’s intentions. The good news for parties wishing to explore such claims is that they do not have to embark upon legal action in the dark.
Anyone with a legitimate interest in the Estate of the Deceased can as a preliminary step send to the party who prepared the will (frequently a solicitor) something called a Larke v Nugus Request. Such a request asks the will writer to answer a number of questions about the facts surrounding the preparation and execution of the will. For example, when it was made, whether a previous will had been in existence, whether the Testator’s capacity was assessed and who may have been with the Testator when instructions for the will were provided.
Further, key documents can be requested. For example, any earlier drafts of wills produced or letters of instruction made by the Testator. Crucially, there may be an attendance note produced by the solicitor setting out in detail the wishes of the Testator and why they wanted certain individuals to benefit and not others or perhaps in unequal amounts.
Importantly for these purposes, no case is the same and anyone preparing a Larke v Nugus Request should ensure that the information requested is suitably tailored to their particular situation.
Once a response is received, the enquiring party may be in a much better position to decide whether a formal challenge to the Will is sensible. Many parties also find that if nothing else they obtain closure on many personal issues by seeing for themselves the actual stated wishes of the Deceased and their reasoning.
There is nothing new about this procedure but it is frequently overlooked as a relatively easy and early step to take. Indeed, the principle originates from the case of Larke v Nugus in 1979 in which the Court of Appeal made it clear that the parties in similar situations should be provided with evidence and contemporaneous documentation upon request in order that they can assess the merits of a possible claim rather than to bring potentially unnecessary litigation.
Perhaps importantly, the solicitor or will writer is not obliged to respond to such a request. However, in our experience 90% of requests are met as long as legitimate reasons to investigate a claim against the Estate are made out. In particular, the solicitor or will writer know that if they failed to release the details they are likely to be criticised by the Court and indeed the Court may make them pay for any legal costs incurred.
In summary, a Larkev Nugus Request can be an important first step in knowing more about whether a challenge to a will is a realistic possibility.
To find out more about Raworths’ Dispute Resolution team based in Harrogate, North Yorkshire, please contact Jonathan Mortimer on 01423 566 666 or email jonathan.mortimer@raworths.co.uk
Published on 20 December 2021
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