When doubts surface about the validity of a Will, it can be very helpful if the solicitor who prepared it is prepared to give evidence about the circumstances in which the will came to be made and provide copies of the will file. The Law Society has for many years published guidance to practitioners as to how best to proceed if they receive such a request for information, with a view to avoiding potentially costly litigation. The then-current guidance was affirmed by the Court of Appeal in the 1979 case of Larke v Nugus, since when such requests made to will-preparers have come to be known as ‘Larke v Nugus letters’.
Nevertheless, there remained considerable doubt about the scope of such guidance (i.e., whether it only applied to solicitors who were also executors, as in the case of Larke v Nugus itself, or whether it also applied to solicitors who had prepared a will but were not named as executors). There was also tension between the guidance given by the Court of Appeal and the Law Society on one hand, which encouraged the provision of information upon request, and the rules about privilege and client confidentiality on the other, which often proscribe a response being given.
In December 2018, the Law Society helpfully revised its guidance (last updated in October 2011) to address these issues. The Practice Note now contains a much fuller discussion of the rules of client confidentiality and privilege and how these interact with Larke v Nugus requests. It reminds practitioners for example that client confidentiality and
privilege survive the death of the testator and vest in his or her Personal Representatives, that the Personal Representative’s consent should be obtained
and that the time from when the Personal Representatives will have authority to give such instructions will differ depending on whether they are executors or administrators.
Larke v Nugus letters remain a very useful tool to elicit information about a disputed Will before proceedings are issued. It is important however that those seeking to use them and those having to respond to them are fully aware of all the potential issues they entail, both in order that they are used to their full advantage and so that potentially difficult
side-disputes are avoided.