Private client practitioners prepare potentially thousands of Wills in their career. However, it can be unnerving to receive a letter from another firm requesting information in connection with specific Wills made in accordance with the case of Larke v Nugus. We will discuss whether you should reply to a Larke v Nugus request and what you should include.
The initial question to ask is whether you should respond at all. You have no duty to respond to a Larke v Nugus request, but Will writers have been penalised for not responding when it was appropriate. Therefore, you must carefully consider your obligations, including your duty of confidentiality, your duty as executor if applicable, and your duty to reduce litigation costs.
Solicitors have a duty of confidentiality under the SRA Code of Conduct, however as an IPW member, you also owe a duty of confidentiality to your client. The duty of confidentiality extends further than the testator’s lifetime. Legal advice privilege also applies on the basis that the Will file consists of conversations between you and your client. Although unlikely, if you receive the request while the testator is alive, you must ask the testator’s permission to disclose such information. If the testator is deceased, you must ask the personal representatives for permission to disclose.
Your decision to respond will also differ if you are named as an executor, rather than merely preparing the Will. This is because a preparer and executor (if sole executor) can waive the privilege if the testator has predeceased. It is unclear whether a practitioner who only prepared the Will is obliged to respond. However, you do have a duty to actively keep litigation costs to a minimum in any event. Therefore, provided any personal representatives authorise disclosure, it might be wise to offer a response to the request.
Depending on the request you receive, you may wish to ensure the person instigating the request is genuine and not a “fishing expedition”. For example, you could request the reasons for their request. This will also alert you to any potential litigation which may be brought against the personal representatives, or indeed you.
In summary, you must request authority to disclose information from the personal representatives, but in the event that the personal representatives agree, you should seriously consider responding to the request to avoid adverse costs, particularly if you are also an executor.
If you are looking to respond to a Larke v Nugus request, you should answer the questions as fully as possible and any relevant documents. It is generally considered to be best practice to disclose the entire Will file to avoid unnecessary applications to the court. You are entitled to your costs of complying with the request.
We would highly recommend reviewing the Law Society practice guide on disputed Wills. We can also assist you if you require any advice on responding to Larke v Nugus requests.
Our contentious probate team specialises in all aspects of contentious probate and is consistently ranked in the top tier of The Legal 500. The team is headed up by Robert Weston, who is listed in The Legal 500 as a “leading individual” and was the instructing solicitor for the successful party in the landmark judgment of Walker v Badmin. Robert, together with Suzanne Lee and Andrew Chandler are all full members of The Association of Contentious Trust and Probate Specialists (ACTAPS) and represent clients both nationwide and abroad in both bringing and defending claims.
If you have a contentious probate matter which you would like to discuss with a specialist solicitor with a view to instructing mfg Solicitors LLP, please visit https://www.mfgsolicitors.com/site/services-for-me/contentious-probate/ for further information and contact details.
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