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When a person dies, sometimes relatives or other interested third parties may be surprised or disappointed at the contents of the deceased’s will and in particular who is due to inherit under it. Often when this is the case the relative or other interest third party has a concern over capacity or undue influence at the time the deceased made the will. Relatives for example may be aware of a will from some time ago and upon death, find out there has been a very recent will which in no way reflects the deceased’s wishes or their previous will.
A Larke v Nugus request originates from a Court of Appeal case in 1979. In this case there were concerns over the will and it was disputed. The deceased’s solicitor was asked to provide a statement as to the circumstances including the taking of instructions for the will i.e. what was to be included in it and why and the execution of it. The solicitor did not do so. The Law Society had recommended back in 1959 that a solicitor should provide a statement of all the evidence he could give with extends to all the surrounding circumstances leading up to the preparation and the making of the will. This was then endorsed in the case of Larke v Nugus.
So, if there is a real concern as to the making of a will, a request can be made to the solicitors who drew up the will to find out the circumstances surrounding the making of it. A request can be tailored to the specific circumstances and the specific concerns of relatives or others with direct questions being posed.
The challenge of wills on the basis of capacity issues is getting more and more common due to a greater awareness and knowledge of mental health issues affecting memory including Alzheimer’s disease and dementia.
A Larke v Nugus request is a useful tool as a preliminary step in gathering information which can assist in deciding whether to challenged the validity of a will on certain grounds e.g. capacity, undue influence.
It is sensible for a solicitor to respond to such request and they can be criticised by the court for not doing so. By not responding this can also raise suspicions. If no response is received court action can be taken in certain circumstances to obtain such response by way of a pre-action disclosure application.
If you have any queries or concerns over a Larke v Nugus request or contesting a will in general, please get in touch with Katie Whitehead in our firm’s Litigation department by email Katie.Whitehead@ramsdens.co.uk or by phone 01484 821572.