When Should You Respond To A Larke v Nugus Request?

What is a Larke v Nugus request?

If a Will you have prepared is disputed you may receive what is known as a ‘Larke v Nugus Request’ to provide a full statement of evidence as to the preparation of the Will.

Whilst you are under no duty to comply with a request, the case of Larke v Nugus made it clear that as a Solicitor/Will Writer you have a duty to make every effort to avoid litigation and the costs associated.

The purpose of a Larke v Nugus is essentially to encourage early pre-action disclosure to prevent the costs associated with litigation.

Whilst on the face of it Larke v Nugus sets a precedent for Solicitors to follow, it is not quite as clear-cut in practice.

In an attempt to alleviate some of these uncertainties in December 2019 the Law Society published some helpful guidance setting out when you should respond to a Larke v Nugus Request and what you should consider before responding. A summary of the guidance is set out below:

Should a Solicitor respond if you are a named executor?

If you prepared the Will and are named as an executor in accordance with Larke v Nugus you should provide the requested statement and relevant documents. You do however still have to satisfy yourself that no other person has a sustainable claim to legal (i.e. solicitor-client) privilege in the documents.

Should a Solicitor respond if you are not a named executor?

Solicitors are bound by a duty of confidentiality to their client and this duty remains even after a client has died. Disclosing the contents of a Will of a client without the consent of their personal representative is therefore an indicative behaviour under the SRA Code of Conduct for Solicitors and could lead to disciplinary action against the Solicitor.

Where a Solicitor is not an executor, they should not disclose the contents of a Will without direct authority from the client (whilst alive) or their personal representative (following the client’s death).

The guidance does however go on to state if the Solicitor does choose to respond to a Larke v Nugus Request where they are not the named executor or where the executor has not provided their consent, they need to satisfy themselves that there is a serious dispute as to the validity of the Will. The person making the Larke v Nugus Request therefore needs to set out the reasoning behind the dispute and the mere entering of a caveat is not enough. It is therefore reasonable to refuse to respond until such a reason has been set out.