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What should I do if a Will is challenged?

View profile for Emily Parry
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It is becoming increasingly common for people, usually disgruntled beneficiaries who are not inheriting as much as they had hoped, to challenge the validity of a Will. If you have been appointed as an Executor of an Estate where a Will is being challenged, certain considerations must be made in deciding how you deal with such a claim.

In September, the Law Society released an updated guidance on disclosing information contained in a Solicitor’s file, regarding the instruction and execution of a Will by an individual, when that Will is later challenged after the death of that individual.

When can a will be challenged?
Wills can be challenged on a number of grounds, including but not limited to: it is considered the person making a Will lacked the mental capacity to do so; or that a third party had unduly influenced the individual into making certain provisions in their Will, which they would not otherwise have wanted to do.

In circumstances such as these, it is common for the drafter of the Will to receive a Larke v Nugus request. This request asks for information, and any notes made, concerning the instruction, drafting, and execution of the Will by the individual.

Can I respond?
The Will file, like all files held by solicitors, remains confidential and privileged even after the death of an individual. Privilege protects confidential documents between a lawyer and their client. In essence, it is a form of confidentiality, and means the file can be withheld from everyone else.

As Executor, you have the right to look at the file, and decide whether the file remains confidential. This choice can be a difficult and complicated one, and each situation is different which means there is no “one size fits all” answer. As an Executor, you should remain neutral in any disputes, whilst at the same time being aware that the file is confidential until you decide otherwise.

What happens if don’t to release the file?
You may decide that the request regarding the Will and file is without merit, and that they are merely “fishing” for information of the off chance they find something. As such, you may refuse to release the Will file, and claim the file is confidential and privileged.

Depending on the circumstances, the person making the request may make an application to Court to order the file to be released. If the Court considers that there is a sufficient reason, it will order you to disclose the file. Should this happen, the Court may ask that the other party’s legal fees for the Court application be paid by you, personally.  Alternatively, the Court may agree with you that there is not sufficient reason provided to order the release of the file.

What happens if I release the file?
On the other hand, you may think that releasing the Will file may put an end to further investigations.  Or you may consider that there are merits to their concerns, and allow access to the file, to assist with their investigations. It should be noted that the Court does encourage parties to provide disclosure of documents at an early stage to save time and money for both the parties, and the Court.

It is advisable that you seek legal advice when you receive a Larke v Nugus request, so please contact us, and one of our specialist team members will be able to assist you.