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Tuesday 24th December 2013

Up with the Larke

Receiving a Larke v Nugus letter relating to a challenge to a will can be daunting, but responding to such letters quickly and efficiently can help make the process simpler for everyone. Andrew Kidd and Richard Roberts explain.

Clients often come to contentious probate practitioners with an emotionally charged account of why a will should not stand, and seeking answers as to what can be done about it. Practitioners must carefully examine that account, and undertake an investigation and fact-gathering exercise well before any claim is issued, to see if it amounts to a legally sound case for challenging the will – and if not, they will need to explain to their client why.

This area of practice is generally viewed with dread by non- contentious probate practitioners wary of questions about their will files. This article seeks to demystify the process surrounding initial investigations, with a particular focus on the ‘Larke v Nugus’ disclosure procedure.

What is a LARKE V NUGUS letter for?

Whatever the ground or grounds for challenging the will, a key part of the process is the writing of a ‘Larke v Nugus letter’, which is sent to the solicitor (or will-writer) who prepared the testamentary instrument in question, be it a will or codicil. This letter should be prepared and sent at the earliest opportunity.

In Larke v Nugus [2000] WTLR 1033 CA, the Court of Appeal set out what a solicitor should do when a will they made is challenged. The Court of Appeal stated that “every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will as to how the will came to be made”.

A Larke v Nugus letter is sent in order to gather as much information as possible about the preparation and execution of the will. Much information can be gleaned from the will file, including, but certainly not limited to:

  • whether the testator had a long-standing relationship with the solicitor;
  • details of how and what instructions were given and who else, if anyone, was present;
  • to what extent, if at all, testamentary capacity was assessed, and if it was assessed, how it was documented;
  • whether or not the ‘Golden Rule’, as set out in Kenward v Adams (The Times, November 29, 1975) was complied with;
  • whether the testator appeared to being influenced by anyone, and if so, if any steps were taken to remove that influence so that the testator could be considered at the time to be acting of their own volition;
  • whether and to what extent earlier wills were discussed, and what attempts were made to discuss departures from that will/those wills, and what reasons the testator gave for making any such departures;
  • how the provisions of the will were explained to the testator; and
  • who, apart from the attesting witnesses, was present at the execution of the will, and where, when and how this took place.

Where circumstances lend themselves to scrutiny, such as the will being prepared on the testator’s deathbed, it would seem less necessary for the Larke v Nugus letter to expressly set out the basis for the scrutiny. However, this may be necessary where the suspicion is based on more subtle factors, as is often with the case with allegations of undue influence and / or lack of knowledge and approval, and where the solicitor would have been unaware of material facts which have since come to light. Indeed, even if it is possible, it may not be helpful to set out the allegations at this early stage, as it may jeopardise the opportunity to resolve matters amicably through objectivity and conciliatory communications between the parties.

The Law Society’s disputed wills practice note (available from the Law Society website at lawsociety.org.uk/practicenotes) sets out that Larke v Nugus letters are borne out of a situation where “a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat”. “Serious dispute” is not defined, and it is down to the recipient of a Larke v Nugus letter to determine whether they consider it to amount to a bona fide request. The solicitor will usually naturally have a limited knowledge of the testator and their life, so will have very little foreknowledge of the potential for a challenge to the will. In all but a tiny minority of cases, Larke v Nugus letters are sufficiently unmeritorious or vexatious for them to be ignored.

Larke v Nugus letters can be seen by those writing them as a way of testing the will-writer. However, it is worth remembering that there are other ways of carrying out a due diligence exercise against a will-writer, especially if they are a solicitor. This could include online checks of their specialisms, as listed on the ‘Find A Solicitor’ section of the Law Society’s website (lawsociety.org.uk/ findasolicitor) and / or on their own firm’s website, whether they are a member of the Society of Trust and Estate Practitioners and / or the Association of Contentious Trust and Probate Specialists, and whether or not they have a clear regulatory record, by checking the ‘Check a solicitor’s record’ section of the Solicitors Regulation Authority’s (SRA’s) website (sra.org.uk/solicitor-check/).

Larke v Nugus letters are not, of course, designed to be used by those investigating a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). Practitioners will appreciate, however, that while instructions may appear at the outset to be the basis of a claim under that act, a solicitor would be failing in their duty if they did not also investigate the merits of a possible challenge to the will. Therefore, in practice, it is possible that a Larke v Nugus letter is sent which elicits information which assists in a claim under the I(PFD)A 1975, though clearly this should not have been the basis for sending the letter.

How should a solicitor respond to one?

For the recipient of a Larke v Nugus letter, comprehensive and clear guidance is set out in the Law Society’s disputed wills practice note, dated 6 October 2011. The practice note states the following:

“When requested, in what is known as a Larke v Nugus letter, you should provide a full statement of evidence as to the preparation of the will, and the circumstances in which it was executed to anyone who has an interest in the dispute, whether or not you are acting for any of the parties:

“You should also, with the consent of any third party personal representatives, make available a copy of requested documents.

“The quickest and easiest way of complying with such requests will often be to copy the contents of the will file.”

However, where there is the suggestion of negligence – which may not be expressly alleged, nor would it necessarily be appropriate for it to be – in a Larke v Nugus letter, the practice note states that the recipient should “inform any lay executors and beneficiaries of the will that they may wish to take independent advice as to whether or not the will was negligently drafted”.

Practitioners must be clear that the authority of the executors must be obtained before the contents of the will file are disclosed (the practice note also, somewhat unhelpfully, states the position before Larke v Nugus, when this was not necessarily the case). The SRA Code of Conduct 2011 makes specific reference to this matter. Under chapter 4, “disclosing the content of a will on the death of a client unless consent has been provided by the personal representatives for the content to be released” is cited as an indicative behaviour which may tend to show that you have not achieved the prescribed outcomes in relation to confidentially and disclosure, and therefore have not complied with the principles of the code.

Where undue influence and / or lack of knowledge and approval is alleged, it is worth remembering that the sender of a Larke v Nugus letter is, inter alia, to use a well-known phrase from Barry v Butlin (1838) 2 Moo PCC 480, seeking to “excite the suspicion of the court”, and shift the burden of proof to satisfy the court as to its validity onto those seeking to uphold the will. One of the ways to do this is to show that the will is a departure from previous will-making patterns, and that the will is not rational from the face of it. This should be borne in mind when responding to a Larke v Nugus letter, as the response is the recipient’s opportunity to, as far as it is possible, keep the burden of proof firmly on the challenger. In general, notwithstanding the inevitably accusatory nature and tone of a Larke v Nugus letter, such letters should be viewed by the recipient as a way of demonstrating their experience and specialist knowledge in this area.

While contemporaneous attendance notes will arguably carry the most weight, the solicitor can, and indeed may be called upon to, provide statements as to the circumstances surrounding the preparation of the will, and in particular, what steps were taken to identify the presence of testamentary capacity, and the absence of undue influence. An attending solicitor will almost always be regarded by a court as a weighty and persuasive witness.

Practitioners will, of course, be familiar with the regulatory requirement to have a process for responding to client complaints (now included in IB(1.22) of the SRA Code of Conduct 2011). It is important to remember that a Larke v Nugus letter does not, in itself, automatically amount to a ‘complaint’; the recipient must judge for themselves whether they consider it to amount to one. Guidance can be sought from the Law Society’s complaints management practice note, most recently updated on 19 September 2011. If in doubt, however, it would certainly be good practice to treat the letter as a complaint, and to record it in the firm’s complaints register.

A similar view must be taken with regard to informing the firm’s insurers, in that, if the Larke v Nugus letter amounts to an allegation of negligence, then a report must be made. However, it is worth emphasising that, again, the letter must be judged on its own facts, and does not, in itself, amount to an allegation of negligence. Reference should also be made, of course, to the terms of the firm’s individual professional indemnity policy.

Who pays the costs?

At present, there is no specific Ministry of Justice pre-action protocol under the Civil Procedure Rules (CPR) which applies to contentious probate claims, so the prevailing authority in this area is the general Practice Direction – Pre-Action Conduct protocol. Practitioners may also have regard to the Association of Contentious Trust and Probate Specialists’ draft protocol for the resolution of probate and trust disputes. However, the central themes remain the same: disputes should be resolved without litigation, which should be seen as a last resort, and there should be an early and frank exchange of information to enable the parties to apply a ‘cost / benefit’ analysis at an early stage.

It is clear that the “conduct of the parties” in relation to the general pre-action protocol referred to will include the way in which a party dealt with Larke v Nugus disclosure requests. A failure by a solicitor to respond properly to a Larke v Nugus letter is not merely a breach of professional duty, but is also likely to lead to adverse costs consequences. This may include not only orders as to costs between the parties, but also a wasted costs order against the firm for failing to supply the information which has been sought.

In terms of the actual costs in complying with a Larke v Nugus request, the respondent is entitled to levy a reasonable charge for photocopying.
While the Law Society’s disputed wills practice note states that “[a]s a potential witness in proceedings, you may not charge for time spent compiling the statement or documents, however, a reasonable charge may be made for photocopying”, the SRA has specifically confirmed that there is nothing in its Code of Conduct which prohibits a solicitor from making a reasonable charge in complying with a Larke v Nugus request.

What if a response doesn’t come?

It may well be the case that a response to a Larke v Nugus request is not forthcoming. This could be because the will file in question has been destroyed (though the solicitor would, in such a case, not be discharged from providing a statement as to, inter alia, the circumstances surrounding the preparation of the will), or because the lay executors, perhaps not fully grasping the potential implications of not consenting to disclosure, have refused to agree to disclose.
Whatever the reason, the court has power under rule 31.16 of the CPR to order pre-action disclosure of documents in order to either: dispose fairly of the anticipated proceedings; or assist the dispute to be resolved without proceedings; or save costs. However, this would involve an application to the court.

How should consent of the executors be sought?

The quandary which may present itself upon receipt of a Larke v Nugus request is to what extent it is appropriate for the solicitor who prepared the will to be involved in advising the executors as to the disclosure of the will file, and, indeed the merit or otherwise of a claim arising out of that file. As already touched upon, the potential for a professional negligence action can arise where it is found that the testator had insufficient testamentary capacity, particularly if the solicitor did not comply with the ‘Golden Rule’ or failed to carry out more elementary checks on capacity, or where undue influence was exerted over the testator and the solicitor failed to be receptive to this undue influence and / or attempt to eliminate it.

Where professional negligence is expressly alleged, or inferred, or it is reasonable to conclude that it might be at a later date, the solicitor should refer the executors to independent advisors, as a failure to do so would clearly put the solicitor in a hopeless and clear conflict of interest.

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