The Non-Lark in Larke –v- Nugus



The Non-Lark[1] in Larke –v- Nugus

If you’re not a wills and estates lawyer you wouldn’t have heard of Larke –v- Nugus. If you are a wills and estates lawyer, you wish you hadn’t. In simple terms, in the league of cases producing strange legal principles, there’s one that occupies the Bradmanesque position, Larke –v- Nugus.

Larke –v- Nugus

Larke v Nugus is a 1979 decision of the English Court of Appeal (Buckley, Shaw and Brandon LJJ) which was so note worthy of attention that it didn’t get reported until 21 years later and, even then, only in summary form: [2000] WTLR 1033. The appeal concerned a disputed order for the executors’ costs of the grant of probate in solemn form. The brief facts are that Larke was the solicitor for the deceased testator and one of the executors under her will. Nugus was the executor of the estate of deceased beneficiaries named in the deceased testator’s will.

The beneficiaries asked Larke for a copy of the will and “a statement of his evidence regarding the execution of the will and the circumstances surrounding it”, referring to a recommendation from the Law Society of England and Wales that a solicitor do this where there was a serious dispute as to the validity of a will and the solicitor’s knowledge made him a material witness. None was provided. For his sins, when Browne-Wilkinson J pronounced for the will in solemn form he made no order for the executors’ costs.

According to the report, on the appeal Brandon LJ (with whom Shaw and Buckley LJJ agreed) made these uncontroversial remarks:

“The principle to be applied was that in litigation over a will, every effort should be made by executors to avoid costly litigation and that where there were suspicious circumstances surrounding the making and execution of a will, it was right that full information should be given to those attacking the will as to how the will was made, and in the present case, where suspicion was attached to persons who had only recently come to live with the testatrix and took a substantial interest under the will, then circumstances in which instructions were given were more important than information as to the formalities of attestation.”

It will be observed that these are general comments for executors, not solicitors, but anticipate that the executor can obtain the relevant information from the will-drafter, who will often – but not always[2] – be a solicitor. According to the report, Buckley LJ made these additional remarks:

“[T]he Law Society’s recommendation was concerned with problems which arose out of the professional confidential relationship between a testator and his solicitor. The statement which a solicitor was recommended to make where there was a serious dispute as to the validity of a will and where the solicitor’s knowledge made him a material witness, was a statement of such evidence as he himself could give and not be confined to narrow matters concerning the execution of the will, but should extend to all the surrounding circumstances leading up to the preparation and making of the will“.

Somewhat dubiously, Larke v Nugus has been subsequently relied on as establishing a legal principle which aligns with the obiter comments made by Buckley LJ. It appears that Buckley LJ was merely restating his understanding of the recommendation from the Law Society of England and Wales. And that recommendation has not been considered so sound that it has withstood amendment by that Law Society on two later occasions. Those amendments have produced a recommendation significantly removed from that referred to in Larke v Nugus

Contents of a Larke v Nugus letter

The Law Society for England and Wales state that a Larke –v- Nugus letter “may request some or all of the following information:

  • How long have you known the deceased.
  • Who introduced you to the deceased.
  • The date you received instructions from the deceased.
  • Contemporaneous notes of all meetings and telephone calls including an indication of where the meeting took place and who else was present at the meeting.
  • How the instructions were expressed.
  • What indication the deceased gave that he knew he was making a will.
  • Whether the deceased exhibited any signs of confusion or loss of memory.
  • 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.
  • How the provisions of the will were explained to the deceased.
  • Who, apart from the attesting witnesses, were present at the execution of the will and where, when and how this took place[3].

Consequently, it has become common for those seeking to challenge a will – and on almost any basis, and much wider than the suspicious circumstances covered by the original recommendation from the Law Society for England and Wales – to seek this information from the solicitor who prepared the challenged will.

Critique of Larke –v- Nugus in NSW setting

The difficulty is that if there is any ratio of Larke –v- Nugus it is either:

  • That if executors fail to make reasonable efforts to avoid costly litigation, the executors will not receive its costs of the litigation, or
  • Where there are suspicious circumstances surrounding the making of the will, the executors should provide full information about how the will was made to those attacking the will.

Accordingly, whilst Larke –v- Nugus has never been followed in NSW, the first possible ratio is consistent with the approach of NSW courts but the second is without support. Not only has there been no court decision adopting the suggested ratio, the Law Society of NSW has never published a recommendation similar to that of its English and Welsh cousin. The inevitable conclusion is that, in NSW, Larke –v- Nugus should not be regarded as an independent source of authority for a solicitor to disclose otherwise confidential information about the preparation of a will.

[1] Meaning a harmless prank. Unfortunately, the (mis)use to which the decision has been put is not harmless

[2] The comments in Re Maria Elizabeth Rudd; ex parte Prince [2015] WASC 107, [40] where the will-drafter is not a solicitor, are worth reading.

[3]…    accessed 10 November 2009.

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