The High Court’s recent ruling in Addison & Anor v Niaz [2024] EWHC 3124 (Fam) underscores the critical role of solicitors in responding to Larke v Nugus requests in contested will cases.
The High Court’s recent decision in Addison & Anor v Niaz [2024] EWHC 3124 (Fam) has significant implications for will disputes, particularly regarding solicitors’ obligations to respond to Larke v Nugus requests. This case provides vital insights for legal professionals, executors, and beneficiaries in contested probate matters.
What Is a Larke v Nugus Request?
A Larke v Nugus request is a formal letter sent to the solicitor who prepared a disputed will. It seeks detailed information about the circumstances surrounding the will’s drafting, including:
- The testator’s mental capacity
- Instructions provided by the testator
- Discussions about the will’s content and its execution
Such requests are critical in determining whether a will is valid or should be contested.
Background of the Case
In Addison & Anor v Niaz, the claimants, who were children of the deceased, questioned the validity of their parent’s will. They suspected undue influence and a lack of testamentary capacity. To investigate further, they issued a Larke v Nugus request to the solicitor who drafted the will, seeking clarification on its preparation.
Despite the importance of the request, the solicitor delayed her response for four months, providing only limited information. The claimants subsequently applied under Section 122 of the Senior Courts Act 1981, compelling the solicitor to attend court and provide a comprehensive explanation.
Key Issues Addressed by the Court
The court identified several critical points in its judgment:
- Delays and Inadequacies in Responding
The solicitor’s response to the Larke v Nugus request was deemed untimely and insufficient. This hindered the claimants’ ability to evaluate the validity of the will.
- Inconsistencies in Evidence
During the solicitor’s oral testimony, inconsistencies emerged between her written response and her witness statement. These discrepancies raised questions about her diligence and transparency.
- Duty of Solicitors in Will Disputes
Chief Master Shuman emphasized solicitors must respond promptly and thoroughly to Larke v Nugus requests. The updated Law Society guidance on disputed wills further reinforces this obligation.
- Privilege in the Context of Larke v Nugus Requests
Ms Niaz did not raise that she faced problems obtaining consent from the executors to respond to the Larke v Nugus request and therefore a ‘waiver of privilege issue’ did not feature in this case. The case fell into the category of a Will draftsperson who either did not wish to respond or failed to respond properly.
In Addison & Anor v Niaz, the issue of privilege did not play a central role, as Ms. Niaz did not face any difficulties obtaining the executors’ consent. Instead, the case focused on her failure to respond adequately. However, Chief Master Shuman provided important guidance regarding privilege in Larke v Nugus requests:
- a) Good Practice vs. Obligation:
While the court emphasised that obtaining the executors’ consent before disclosing privileged information is good practice, it is not strictly required. The judgment clarified that solicitors are generally expected to respond even if consent is withheld, provided they notify the personal representatives (PRs) of their intent to do so.
- b) Balancing Disclosure and Confidentiality:
Chief Master Shuman highlighted the importance of disclosing key facts about the preparation and execution of a Will without breaching confidentiality unnecessarily. Solicitors can first disclose general details and avoid personal or sensitive information in their initial response, minimizing risks tied to privilege.
- c) Managing Potential Risks:
Solicitors who fail to respond to Larke v Nugus requests, regardless of privilege concerns, may face adverse cost orders. If the Will drafter is also a PR, they hold the privilege and can decide whether to waive it. Otherwise, solicitors should advise PRs of the risks associated with withholding consent. - d) Court Intervention as a Solution
In situations where consent is denied, solicitors may opt to disclose their intention to seek the court’s direction under Section 122 or 123 of the Senior Courts Act 1981. This allows the court to compel disclosure without breaching confidentiality obligations, mitigating risks of adverse cost implications.
In Niaz, the solicitor’s failure to follow these best practices led to a costs order against her, illustrating the importance of prompt and appropriate responses to Larke v Nugus requests.
