Disputed wills: limits of Larke v Nugus requests

Disputes over the validity of a will often emerge in emotionally charged circumstances – particularly where the terms of the will are unexpected, or where concerns arise about the testator’s mental capacity, undue influence, or the propriety of the drafting process because the will may have been prepared by a new firm of solicitors with no knowledge of previous testamentary arrangements. In such cases, a Larke v Nugus request may be made as a preliminary step to avoid litigation. However, when a will leaves everything to a single beneficiary who is also named sole executor, and that executor refuses to engage, the limits of a Larke v Nugus request are evident.

Requesting the will file

The rationale behind the Larke v Nugus request is to ensure parties have the information they need to consider a claim and, hopefully, resolve that claim without the need for costly litigation.

A key step in preparing a claim to challenge a will is obtaining the 'will file', which details how instructions were given and how the will was signed. This can be requested via a 'Larke v Nugus request', named after the case heard in 1979 which approved existing Law Society guidance and established that full information regarding a will should be provided if there were suspicious circumstances surrounding it. The Law Society’s guidance on disputed wills explains how this works in practice today. The request asks the will drafter for documents and information about the will’s preparation and execution. Responses vary – from detailed notes and emails to a single scribbled memo.

Balancing disclosure and confidentiality

Usually, solicitors would not provide a confidential and privileged client file to third parties. Therefore, a response to a Larke v Nugus request is, on the face of it, a break with the usual rules of privilege and confidentiality, both of which survive a person’s death.

The will drafter must therefore obtain consent before providing a response to the request. This can be from various people, but typically they seek consent from the executors, who legally step into the testator’s shoes, to release the file.

There are cost risks associated with any following litigation for those who unreasonably refuse to provide their consent. In the case of Addison v Niaz, a solicitor who provided a slow and inadequate response to a Larke v Nugus letter was ordered to pay the costs of a follow-on application for more information. Executors acting unreasonably face similar consequences.

When consent is withheld

In cases where a will has appointed professional executors, or executors who do not benefit under the will, the Larke v Nugus process usually works well as they give their consent to any reasonable request.

Problems arise when an executor, especially one who is the new sole beneficiary of a suspicious will, refuses to engage. Without their consent, solicitors cannot release the file, leaving claimants stuck. They could try to bring a claim without any of the documents, but that claim is not easy to frame and comes with risk if it turns out that the files show the testator did give clear and capacitous instructions. This is not attractive, and the law should have a mechanism to avoid such a situation.

Forcing disclosure

Pre-action disclosure under section 33 of the Supreme Court Act 1981 and CPR 31.16 may be sought to obtain documents relevant to the potential claim from prospective parties before litigation begins. This has limits, because (i) the solicitors who hold documents may not themselves be prospective parties to a claim and (ii) it does not permit the court to override privilege.

Claimants could apply to court under section 122 of the Senior Courts Act 1981, requiring someone with knowledge of a testamentary document (including a solicitor) to attend Court to answer questions and bring a copy of the document. It is contempt of court if the person so ordered to attend fails to do so.

However, even if successful, these options are costly and adversarial. The idea of a Larke v Nugus request is to avoid costs where claims do not need to be litigated but these alternatives require significant legal costs. Court intervention at this early stage also puts pressure on the relationship between the opposing sides, souring the chances of sensible settlement discussions.

What else could be done?

One solution is for testators to consent during their lifetime to posthumous disclosure of the will file, perhaps via the engagement letter. This could also flag concerns about undue pressure or capacity if the testator refuses to do so without good reason. Alternatively, it might be necessary now to develop a new legal mechanism which allows solicitors to respond to genuine Larke v Nugus requests without executor consent if this consent is unreasonably withheld. Precisely how this would work, and who would bear the associated costs, would need careful consideration.

Upholding true testamentary wishes is an important principle in law. Without reform, families may remain powerless or forced into costly litigation just to get basic answers in order to protect the true wishes of their loved ones.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2025