Larke v Nugus Requests and Enquiries of the Witnesses to a Will
Larke v Nugus
What is it?
Essentially, it is a request for early pre-action disclosure of information from the solicitor/will writer who prepared the Will about:
- The circumstances surrounding the preparation of the Will and;
- The execution (signing and witnessing) of the Will.
A case from the last century that concerned such a request lends its name to this type of enquiry.
What information might be gathered?
Often a solicitor/will writer makes an attendance note covering a range of points such as the instructions given for the new Will, the reasons behind any change compared to the previous Will, and who was present at the initial Will instruction meeting and the Will signing meeting.
Why can it be helpful?
This can provide an invaluable window on the process and approach at the time the Will was prepared and signed. It could provide information that is supportive of claims for lack of testamentary capacity, knowledge and approval, undue influence or even forgery or fraud.
When is the best time to make a Larke v Nugus enquiry?
Solicitors/will writers’ firms do sometimes move address or close down so files are not always retained indefinitely. Accordingly, the sooner an approach is made the greater the chance evidence will still be available.
Attesting Witness Enquiries
What is it?
An approach to each of the two individuals who witnessed the testator (person makes the will) sign the Will and added their own signatures.
What information might be gathered?
Details of when, where, and how the Will signing and witnessing took place (and who else was present at the time).
Why can it be helpful?
A Will is invalid if all the formalities under the Wills Act 1837 s.9 have not been followed correctly.
E.g. witnesses not present when the testator signed/affirmed their signature. Additionally, evidence from the attesting witnesses can give insight into who else was present and involved at the time the Will was signed which could be relevant for consideration of grounds for challenge due to undue influence. Also, specific rules apply to who may act as a witness, and there are strict restrictions that prohibit an attesting witness or their spouse/civil partner from benefitting under a Will.
When is the best time to make enquiries with attesting witnesses?
The memory of witnesses can fade over time, or they may move away or die. Accordingly, the sooner an approach is made the greater the chance relevant evidence will still be available.