Larke v Nugus

[Tobycat2018]

We are about to send the above to the firm solicitor that prepared the will however we have since found out that the actual solicitor that wrote the will has since passed away too and there is no will file - it would appear that the fiem
of solicitors never did one. Will this assist my case against proving a will is invalid as they either cannot or won’t answer the Larke v Nugus? Many thanks

[Amethyst]

If the Solicitor who prepared the will and has since passed away worked for a firm of solicitors then his files and notes should be held at the Solicitors so they should still be able to respond, even if just to confirm the individual solicitor is deceased and they have no information or notes available, you could add a request in asking what happened to the Solicitor's files. Then your request is in play should you need to take any further action or should any file come to light later. Also, it might assist costs wise if you do challenge and it turns out to be valid that you did ask the relevant questions of the Solicitors firm. Tagging Peridot to double check on that too

What are your concerns about the validity of the will ?

[Tobycat2018]

We have already requested the Will File and all that it contains is a letter that was sent with the final invoice. No notes nothing on anything so the legal firm have nothing to give us (or so they say!) Without going into too much detail we are trying to prove that the will was signed under Testimantary Capacity - basically it was my fathers will he was co-erced into singing it without it being explained to him and understanding what it said as he couldn’t read or write properly and his new wife made him write his child and grandchild out of the will and leave everything to her!

[Amethyst]

Ahhhh. On what basis did they send you the will file ? I'd put in a Larke v Nugus letter anyway tbh as they will know that if they do hold anything they will have to disclose it, as opposed to a general request where they might not look as hard for any notes.

Have you had sight of the will ? and have you spoken to the Witnesses at all (if possible)?
Was the Will changed late on in your fathers life and did the previous will included provision for child/grandchild ?
Have you considered claiming under the Inheritance (Provision for Family and Dependants) Act 1975 ? ( Depends on circumstances - have a look at Ilot v Mitson )

des8

Peridot

[des8]

Other than the above I have nothing to add except it might well be claimed that his new will only confirmed the legal position I.e. his marriage automatically revoked his former will (assuming that was signed prior to his marriage) and depending on the value of his estate everything would pass to his new wife anyway.
Under those circumstances it might have been considered there was no need to explain the will as it just shadowed the law.

[Tobycat2018]

Ok so here is a super quick overall picture my father wrote me out of his will for no reason other than he was manipulated to do so by his new wife who also isolated him from me his only child and the rest of his family. My father was a very simple man who could not read or write or understand anything that even involved a minimum level of complexity to the point where he wrote me out of the will but named me as the Sole Executor! It was under this guise I managed to obtain the Will File. It’s a whole huge mess!

[Peridot]

Hi Tobycat2018,

Amethyst and Des8 have made good points and I think it is still worth requesting the Larke v Negus, as Des8 says if only to get the firm to confirm they have no attendance note or file confirming the instructions they were given etc.

The fact there is no will file in existence doesn't necessarily prove the Will is invalid. I am not sure whether you are trying to argue that your father did not have necessary mental capacity to have a Will prepared or whether you are suggesting that he had the capacity to make the Will but was unduly influenced by another person?

There are rules to follow to ensure a Will is valid for example it must be signed and witnessed by 2 other independent adults who shouldn't themselves be benefiting, under the Will. However, if a witness was due to receive something under the Will it doesn't mean that the whole will would be invalid just the legacy to them may fail. To make a Will the testator (person making the Will) must understand they are creating a Will and understand what the Will clauses mean. If someone is unable to read or write it doesn't prevent them making a Will, but the clause at the end of the Will (the attestation clause) should state that the Will has been read out to the person, who understood it and that they have left their mark confirming this (if they can not sign). There would still need to be 2 witnesses to the mark, or signature.

As you are aware, usually there would be an attendance note if the Will is prepared by a firm which confirms the lawyer's belief that the person has sufficient capacity and understanding of what they are asking to be included in the Will and it's effect. If the lawyer preparing the Will had doubt the person has sufficient capacity to understand what they are requesting, then the usual course of events would be to obtain confirmation of their mental capacity from a medical practitioner. Unfortunately legal mental capacity is not straightforward. Even someone with dementia, can have lucid times when it could be deemed they had sufficient capacity to provide Will instructions and sign a Will.

It is a very different argument to say that someone who was capable of making a Will had been unduly influenced into how their estate was to be distributed when the time came. It is generally pretty difficult to prove that someone has been unduly influenced.

Are you aware what your father's previous Will said? Was it prepared by the same law firm who prepared the most recent one?
Have you seen a specialist lawyer about this? I think it would be advisable, if only to check what your best cause of action is and whether, bearing in mind the value of the estate, it is worth pursuing matters, bearing in mind the cost of doing so.

I hope this helps to clarify things. We're here if you have other queries or need further pointers.

[SmurfEater]

Would there be any benefit of mediation between the 2 parties, or is it that the Will is required to be proved valid first?

[Peridot]

Mediation is always a good option. However, I would suggest you need to be sure what your issues with the will are, before suggesting that route.

[Miss.Ch]

Good afternoon. Can anyone help regarding a Larke v Negus request. Do I have to use a solicitor to get information notes surrounding my late brothers will. I already hold a copy of the will but need to see what if any notes exist regarding his state of mind as he was suffering from a high grade brain tumour and it is most likely that he was influenced by an older brother who became his executor.

[Amethyst]

ACTAPS ( http://www.actaps.com/draft.cfm ) have an example which you could adapt to suit - tagging Peridot too if she has a better example that better for a non solicitor to send.

Joint Application Letter to solicitors who prepared Will requesting Larke -v- Nugus Statement

Dear Sirs
[Name of Deceased] deceased
We, the undersigned Messrs (firm's name)(ref: ) of (firm's address), solicitors for the Executors named in the Will of (deceased's name) of (deceased's address) and we, the undersigned Messrs (firm's name)(ref: ) of (firm's address), solicitors for parties interested in his/her estate regret to inform you that (deceased's name) died on (date of death)
We understand that you drafted the deceased's last will dated [ ].
You may be aware that in 1959 the Law Society recommended that in circumstances such as this the testator's solicitor should make available a statement of his or her evidence regarding instructions for the preparation and execution of the will and surrounding circumstances. This recommendation was endorsed by the Court of Appeal on 21st February 1979 in Larke v Nugus.
The practice is also recommended at paragraph 24.02 of the Law Society's Guide to the Professional Conduct of Solicitors, 7th edition (page 387), and that advice was highlighted and supplementary information provided by the Law Society Practice Note of 6 October 2011, on disclosing such information, the consequences of failing to do so, and protecting the estate.
Accordingly, we hereby request and authorise you to forward to each of the aforementioned firms statements from all appropriate members of your firm on the following points:
· How long had you known the deceased?
· Who introduced you to the deceased?
· On what date did you receive instructions from the deceased?
· Did you receive instructions by letter? If so, please provide copies of any correspondence.
· If instructions were taken at a meeting, please provide copies of your contemporaneous notes of the meeting including an indication of where the meeting took place and who else was present at the meeting.
· How were the instructions expressed?
· What indication did the deceased give to you that he knew he was making a will?

• Were you informed or otherwise aware of any medical history of the deceased that might bear upon the issue of his capacity?

· Did the deceased exhibit any signs of confusion or loss of memory? If so, please give details.
· To what extent were earlier wills discussed and what attempts were made to discuss departures from his earlier will- making pattern? What reasons, if any, did the testator give for making any such departures?
· When the will had been drafted, how were the provisions of the will explained to the deceased?
· Who, apart from the attesting witnesses, was present at the execution of the will? Where, when and how did this take place?
· Please provide copies of any other documents relating to your instructions for the preparation and execution of the will and surrounding circumstances or confirm that you have no objection to us inspecting your relevant file(s) on reasonable notice.
We confirm that we will be responsible for your reasonable photocopying charges in this connection and your invoice in this regard should be sent to (each firm's name etc) and marked for the attention of (each firm's ref.).
Dated this [ ] day of [ ] 200[ ]
Signed
..................................................
Signed
.................................................

[Peridot]

Hi,
The template is fine of course it will need amending to be appropriate to the person writing for the information, basically the first and final paragraph need amending.