Larke v Nugus: Accessing the Solicitor’s “Secret” File

When the validity of a Will is questioned, the “silent” evidence contained in a solicitor’s file is often the deciding factor. A Larke v Nugus request is a formal procedure used in England and Wales to compel a Will-drafter to disclose a statement and their complete file regarding the circumstances of a Will’s preparation. Originating from the 1979 case of Larke v Nugus, this request is a critical pre-action tool designed to provide transparency and resolve disputes without the need for expensive litigation. This article explores how this process “unlocks” the secrets of a Will and what you can expect to find within the drafting file.

The Legal Foundation of Transparency

Historically, solicitors could refuse to provide information about a client’s Will due to a permanent duty of confidentiality and legal professional privilege. However, the landmark case of Larke v Nugus [1979] (later reported in 2000) established that where there are “circumstances of suspicion” surrounding a Will, executors and solicitors have a duty to provide full and frank information to anyone with a “serious dispute” regarding its validity.

The Court of Appeal endorsed the Law Society’s recommendation that every effort must be made by executors to avoid costly litigation. By making this information available early, parties can conduct a “cost-benefit analysis” before issuing formal court proceedings.

What the “Secret File” Contains

The Larke v Nugus statement is not just a letter; it is a comprehensive declaration from the Will-drafter answering specific questions about the testator’s instructions. Typically, the request seeks the entire Will-file, which should include:

• Contemporaneous Attendance Notes: Detailed records of every meeting and telephone call between the solicitor and the deceased.
• Assessment of Capacity: Specific notes on what steps the solicitor took to satisfy themselves that the testator had “testamentary capacity” under the Banks v Goodfellow test.
• Who Was Present: Confirmation of whether the deceased was alone or if a beneficiary was “loitering” during the instruction or signing process, a key indicator of undue influence.
• Previous Wills: Discussions regarding earlier Wills and the reasons the testator gave for departing from their previous “Will-making pattern”.
• The “Golden Rule”: Evidence of whether a medical professional was consulted, as recommended by the “Golden Rule” for elderly or ill testators.

The Procedure: From Letter to Evidence

A Larke v Nugus request is usually the second major step in a Will dispute, following the entry of a caveat.

• The Formal Request: A solicitor specialising in contentious probate sends a tailored letter to the Will-drafter asking a series of targeted questions.
• Consent & Confidentiality: The Will-drafter must generally seek consent from the executors to release the file. However, if an executor (who may be the primary beneficiary) refuses consent unreasonably, the solicitor may still be expected to respond to avoid cost sanctions.
• The Response: The result is a Larke v Nugus statement, often accompanied by the full file. This response carries significant judicial weight and can either confirm your suspicions or demonstrate that the Will is robust and likely to be upheld.

Breaking the Silence

We know how it feels when you are excluded from a loved one’s Will and “radio silence” from the legal team only deepens your suspicion. It is easy to feel that the solicitor who drafted the Will is “protecting” the other side. The Larke v Nugus process exists specifically to break that silence. It ensures that the truth isn’t buried in a filing cabinet, allowing you to see exactly what happened in those private meetings before the Will was signed.

Costs and Consequences

Solicitors are entitled to charge a “reasonable fee” for preparing a Larke v Nugus statement, which is generally less than £750 plus VAT. However, failure to provide a full and frank response can lead to severe consequences:

• Cost Orders: If a solicitor or executor provides a slow or inadequate response, the court can order them to pay the other side’s legal costs for the resulting hearings.
• Witness Summons: Under Section 122 of the Senior Courts Act 1981, the court can force a Will-writer to provide evidence if they remain obstructive.

If you suspect a Will is invalid, waiting is a mistake. Once the estate is distributed, even a perfect Larke v Nugus response may come too late to recover the funds. Contact us today to initiate a Larke v Nugus enquiry and uncover the truth.

Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com

FAQs

1. Can a solicitor refuse to provide a Larke v Nugus statement?

Technically, there is no absolute legal duty to respond, but a refusal is highly risky. A solicitor who ignores a bona fide request faces being held personally liable for the costs of litigation that could have been avoided by early disclosure.

2. Who pays for the Larke v Nugus request?

The issue of who pays remains somewhat unresolved in general law. Typically, the party making the request pays the solicitor’s reasonable fee for drafting the statement. However, if the challenge is successful, these costs may be recoverable from the estate or the losing party.

3. Does this apply to “DIY” Wills?

No. A Larke v Nugus request is specifically for Wills prepared by a professional (solicitor, Will-writer, or paralegal) who can act as a material witness to the testator’s intentions.