Addison & Anor v Niaz [2024] EWHC 3124: An Update on Larke v Nugus Requests

The recent case of Addison & Anor v Niaz sheds some light on Larke v Nugus requests, namely the position of the recipient of such a request and how they ought to respond to the same.

What is a Larke v Nugus?

A Larke v Nugus request is a letter which puts several questions to the Will drafter with the aim of seeking information regarding the circumstances within which a Will is prepared and executed. The purpose of making a Larke v Nugus request is to encourage early disclosure of information surrounding the testator’s last Will to avoid costly litigation.

Whilst there is no obligation to respond, it is advisable and considered best practice for a Will drafter to do so. Should they fail to respond then they risk an adverse costs order being made against them in court, regardless of whether the Will is in fact declared invalid or valid.

What are the facts of this case?

Derek Addison passed away on 13th March 2023, leaving behind four children. Derek had prepared a Will in 2016, within which he appointed two of the children as his executors and left his estate to be inherited by all four children in four equal shares. However, in 2021, Derek changed his Will. This later Will again divided his estate between his four children in four equal shares, however, the two children previously appointed as executors had been stripped of this role, with the other two children instead being appointed in their place. Upon his death, the two children excluded from executorship in the later Will sent a Larke v Nugus request to the solicitor instructed to prepare this Will.

The solicitor took several months to respond substantively to this request, despite being chased by the children to respond on numerous occasions. When the solicitor finally responded, their response was deemed as unsatisfactory. As such, the two children applied for a summons under Section 122 of the Senior Courts Act 1981 requiring the solicitor to attend court and answer various questions regarding the making of the 2021 Will.

What was the outcome?

In addressing matters of delay, Chief Master Shuman held that the time in which it took for the solicitor to produce what was simply an unsatisfactory response was unacceptable and contrary to the purpose of a Larke v Nugus request which “is designed to provide pre-claim disclosure and avoid legal costs being wasted in potentially futile litigation”.

In handing down his judgment, Chief Master Shuman also addressed one of the solicitors’ responses to the chasers sent by the children. Specifically, in a purported effort to buy more time to respond, the solicitor claimed that they needed to first obtain executor consent to reply. In Paragraph 8, Chief Master Shuman states the following:

“Where a request is made, the solicitor should disclose information about the circumstances surrounding the preparation and execution of a disputed will… If the solicitor fails to respond, they may be subject to a costs order, regardless of whether the will is held to be valid. Answering such a request may go into privileged or confidential matters, and it is good practice to obtain the executor’s consent.”

The solicitor did not argue that she encountered any issues regarding obtaining executor consent to respond. As such, in the eyes of the court, it appeared as though she was simply failing to respond of her own accord.

In light of the solicitor’s delay in responding to the request and in the absence of any visible issues she encountered in obtaining executor consent to respond, an order was made against her to pay the claimant’s costs assessed at £5,729.40.

What can we take away from this?

For those receiving a Larke v Nugus request, standard practice dictates that executor consent must be obtained prior to responding. This is on the basis that the Will file remains confidential to the testator post-death due to solicitor-client legal professional privilege, and, as such, the executors of the estate must consent to disclosure of this file. However, post Addison & Anor v Niaz, whilst obtaining executor consent remains “good practice”, it may not always be strictly required in order to provide some form of response. Consequently, Will drafters may be expected to respond to a Larke v Nugus request even in the absence of executor consent, provided executors are informed of their intention to do so.

Should an executor refuse to consent to a Will drafter responding to a Larke v Nugus request, that Will drafter (once they are satisfied that there is a dispute) ought to provide some form of response without breaching confidentiality principles, even if they simply state that executor consent cannot be obtained. This will ensure that a satisfactory balance is struck between protecting client confidentiality and mitigating any risk of an adverse costs order being made against them.

Overall, this case highlights the professional obligations imposed on a Will drafter upon receiving a Larke v Nugus request, demonstrating that any form of response regarding their willingness or ability to respond is expected if they want to avoid an adverse costs order being made against them.

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