Making Larke v Nugus requests: Is a solicitor required to respond?

A Larke v Nugus request is a written request made to the person who drafted the will, asking them to disclose information about the circumstances in which it was prepared and executed. It is generally a precursor to someone challenging the validity of that will.

The solicitor’s duty in responding to requests

The Law Society has previously issued guidance to solicitors on when and how to respond to such requests. Interestingly, this guidance only applies to solicitors, leaving question marks over whether it applies to will writers. Legal executives will be bound by the guidance, as most work for solicitors’ firms.

Responding to a request: Legal privilege and consent

Solicitors do not have to respond to Larke v Nugus requests; however, they are under a duty to prevent costly litigation. If solicitors fail to respond when they should have, and litigation follows, they could be liable for some of the costs.

Larke v Nugus itself states that a solicitor should respond when “a serious dispute arises as to the validity of the will, beyond the mere entering of a caveat”. Solicitors are, therefore, not obliged to respond to mere fishing expeditions but should do so where genuine grounds for challenging the will are demonstrated.

A solicitor will usually respond by disclosing the contents of their will file. However, the will file is privileged and confidential. Upon the testator’s death, privilege in the file vests in the personal representatives. Therefore, before responding, the solicitor will need the consent of the personal representatives, or, failing that, all the beneficiaries are entitled to the estate.

Interestingly, the recent case of Addison and another v Niaz [2024] EWHC 3124 states that it is “good practice” to obtain the executors’ consent. This suggests there may be circumstances where such consent is not required. However, it is difficult to imagine what these would be, given the privileged and confidential nature of the file.

Legal consequences of failing to respond

If a solicitor does not respond, the person making the request can apply for an order requiring the solicitor to attend court for the purpose of examination in relation to a testamentary document under section 122 of the Senior Courts Act 1981. The solicitor may be ordered to pay the costs of that application.

In summary, the solicitor should respond as soon as possible if there are genuine grounds for a dispute. Doing so may prevent costly litigation and, ultimately, a negligence claim.

Importantly, solicitors can charge for their time in responding to a Larke v Nugus request and for photocopying expenses, provided those charges are “reasonable”.

If you would like to contest a Will and would like assistance in making a Larke v Nugus request, or you have made a Larke v Nugus request and have not received a response, please get in touch.