Disputed Wills

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    Larke v Nugus

    Cases involving disputed wills very often feature a Larke v Nugus statement. 

    A Larke v Nugus statement is  prepared by the Will Writer who originally prepared the disputed will or witnessed its execution. These statements are frequently requested by the Claimant’s solicitor as evidence against the validity of a will on the grounds of lack of testamentary capacity, undue influence, want of knowledge or approval or forgery.

    The name, Lark v Nugus, originates from a  legal case that determined the law on requests for information regarding the circumstances surrounding the instruction and execution of a will [Larke v Nugus [2000] WTLR 1033].

    The starting position in relation to disclosure of information regarding a deceased’s will is that the information should only be made available to the personal representatives of the estate (or to others with their consent) prior to obtaining the Grant of Administration. However, this does not apply where a request for information is made to the Solicitor who prepared and/or witnessed the execution of the will and there is a dispute in relation to that will. In these circumstances the Law Society has recommended, since 1959, that the Solicitor should make a statement outlining the circumstances surrounding the instruction and execution of the will to any party to probate proceedings or someone who has a reasonable claim against the will. In 2000 the case of Larke v Nugus endorsed this long standing recommendation, which means that a request for information now carries judicial weight.

    A request for a Larke v Nugus statement may seek some or all of the following information and documentation:
     
    1 – How long the Will Writer had known the deceased.
    2 – Who introduced the Will Writer to the deceased.
    3 – The date the Will Writer received instructions from the deceased.
    4 – Contemporaneous notes of all meetings and telephone calls, including confirmation of where the meeting took place and who else was present at the meeting.
    5 – How the instructions were expressed.
    6 – What indication the deceased gave that they knew they were making a will.
    7 – Whether the deceased exhibited any signs of confusion, loss of memory or ill health.
    8 – Whether and to what extent earlier wills were discussed and what attempts were made to discuss departures from the deceased’s earlier will-making pattern; what reasons the testator gave for making any such departures.
    9 – How the provisions of the will were explained to the deceased
    10 – Who, apart from the attesting witnesses, were present at the execution of the will and where, when and how this took place.

    Where we are instructed to challenge the validity of a will drawn up and/or witnessed by a Will Writer we will ask the Will Writer’s firm to provide us with a copy of their file accompanying the will instruction, together with a Larke v Nugus statement dealing with all the issues raised above. This will often be very helpful in determining the strength of a validity claim. It will often indicate whether the deceased was advised correctly by the Will Writer, whether there were individuals present at instruction/execution to support allegations of undue influence and whether the Will Writer undertook the correct test for testamentary capacity.

    Banks v Goodfellow Mental Capcity test

    `It is essential that a testator shall understand the nature of his act and its effects; the extent of the property of which he is disposing; and shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made`

    So this means:

    1 – the testator must understand that they are making a will and for what purpose.
    2 – the testator must know what assets comprise their estate.
    3 – the testator must know who has a claim to his estate.

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    Matt Walkden Will Writer

    About Matt Walkden

    I am a Professional Will Writer and I offer a small number of other products that complement my Will Writing such as Lasting Power of Attorneys (LPA’s), Fixed Price Estate Administration, often called Probate and some Property Products such as changing a family home from Joint owners to Tenants in Common.

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