How To Challenge A Homemade Will

The first step when challenging a Will is generally to make a Larke v Nugus request, which is essentially a fact finding exercise to establish the details surrounding the drafting and execution of a Will.

Larke v Nugus requests are made to the individual/firm who drafted the deceased’s Will and there is no obligation to comply with the request but, if a party unreasonably refuses to comply and a Court application follows, the Court will usually order that party to pay the costs of the application. Further, if a party refuses to comply, it does seem to suggest that they have something to hide. It is therefore better to comply, unless there is good reason.

However, this request becomes more complicated when the person drafting the Will was a family member, friend or someone not typically involved with Will writing. The recent case of Gardiner v Tabet and another confirmed that in this instance, communications between the person drafting the Will and testator, as well as communications between the testator and friends, can be ordered to be disclosed.

Gardiner v Tabet & Anor [2020] EWHC 1471 (Ch)

Case Details

Gardiner v Tabet and another revolves around an individual who had a Will made by his friend, whilst he was on his death bed.

The testator had been diagnosed with an inoperable brain tumour and admitted to hospital for this reason. Whilst in hospital, an old friend visited and gave the testator’s friend an email which supposedly confirmed the testamentary wishes of the testator. These wishes were for the entire estate to pass to the old friend. Once the email was presented to the testator, the testator asked his friend to draw up a Will on those terms. The Will was drawn up by the friend and executed later that day, as witnessed by the drafting friend and another friend.

The siblings of the testator later challenged the Will, as expected, and sought disclosure from the friend drafting the Will and the other friend who witnessed its execution. The defendants refused to disclose any information and left the claimants to make an application to the Court.

The Court considered this request as a Larke v Nugus request and ordered disclosure as requested by the claimants. The Court considered the necessity of disclosure and held in this instance disclosure was necessary as it was likely to support the claimant’s actions, mainly in respect of the testator’s capacity at the time, if not fraud. It was ordered that the communications between the defendants and testator, draft Wills and any documents bearing the testators signature near the time of the Will, were to be disclosed.

Impact

The significance of this case is that an application of a Larke v Nugus request was made against lay persons (someone who is not trained, qualified, or has experience in a particular subject, such as Will writing). Historically, this action was generally reserved for solicitors and Will Writing firms. The application to lay persons now recognises the increasing use of homemade Wills.

The case also confirms what documents should be disclosed when a lay person is involved and suggests this may be anything which the Court consider to be sufficient in supporting or defending any potential claim. This is of course wider when compared to requests against the professionals as Wills made by lay persons will inevitably differ substantially from Will to Will.

Moving forward, lay persons making a Will for friends or family should be aware that if the Will is challenged, they may be required to disclose all correspondence between them and the testator and provide all information surrounding the Will. This again stresses the importance behind the drafting of a Will and will likely prevent the creation of some homemade Wills, without producing some accompanying notes in support of the Will.