We have encountered many cases where there is a suspicion that a loved one’s will might not be valid, but there is no hard information to confirm or alleviate that suspicion.
Some of our clients have been at a loss for what to do because they are unable to obtain sufficient information to deal with their concerns.
If you have concerns that the last Will of your loved one was produced in questionable circumstances, then there are enquiries that can be made of the Will-drafting solicitor to shed light on the issue.
When should the enquiries be made?
If you suspect that your loved one did not have the necessary capacity to make a will, or was potentially the victim of undue influence, or that the will may not have been produced in accordance with proper formalities, or even be a forgery, then you should quite rightly make such enquiries.
What enquiries can be made?
You can ask the Will-drafting solicitor for a copy of the file that was produced when instructions were taken, and you can ask the solicitor to provide formal written answers to a number of relevant questions.
Since the late 1950’s, the Law Society has recommended to solicitors that they provide an explanation of the circumstances surrounding their instructions, and the drafting and execution of the will, whenever there is a reasonable suspicion that the will may not be valid. Essentially, the solicitor should provide a formal written response to any reasonable written enquiry about this subject.
The enquiry is known in the trade as a “Larke v Nugus request”.
The name derives from a case first reported in 1979 (and again in 2000), in which this very issue was tried before the courts.
The case deals with enquiries that can be made about the preparation and execution of a will. The case can be relied upon when an investigation is needed into the instructions taken by the will drafter, and the actions that he subsequently took in respect of those instructions.
Who can make the enquiry?
Ordinarily, any such information about the will should only be made available to the executors of the estate (or to others with their consent) prior to them obtaining a grant of probate. This arises from a duty of confidentiality that is owed by the Will-drafting solicitor to the deceased person.
However, when there is a genuine dispute about the validity of the will, any duty of confidentiality is overridden by a duty to make full and frank disclosure of the circumstances surrounding the creation of the will, and its execution
What do the enquiries concern?
The enquiries tend to relate to the solicitor’s relationship with the Will maker, how the instructions were placed, whether there were any concerns about capacity or undue influence, and whether the technical details were properly explained to and understood by the Will-maker.
In response to such a query, as the Court of Appeal explained, “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”.
The only circumstances which might justify a delay on the part of the will drafting solicitor in the provision of such requested explanation and documents is when there is also a suggestion of solicitor’s negligence which must be referred to that solicitor’s insurer
Whilst there is a duty on the part of the will drafting solicitor of full and frank disclosure, likewise there is a duty on those making the request not to engage in a simple fishing expedition. The request ought reasonably to be used only when there is a genuine suspicion that a will might not be valid. There is no duty to provide a response to a frivolous request.
Who pays the costs?
The Law Society recommends that the will drafting solicitor makes a copy of the file available, and provides proper written answers free of charge, unless a large volume of documents must be copied, at which point a reasonable copying charge may be applied. However, this is only a recommendation, and there is nothing in principle to prevent the solicitor from charging for his time.
How long does it take?
The rules do not provide a fixed amount of time for a response to be provided. Nevertheless, it is expected that the will drafting solicitor should provide a full response in a timely manner in order to avoid potential court action and to avoid the possibility of having to pay unnecessary legal costs.
