Contesting the validity of a will – Larke v Nugus

Contentious Probate

Contesting the validity of a will

Larke v Nugus

A will is a deed which can only be declared invalid in the following circumstances:

  • Due to a technical reason, for example if it has been witnessed incorrectly.
  • If the person making the will lacks testamentary capacity to do so. The test for capacity centres around the will maker’s ability to appreciate and understand the nature of what they are doing, they do not however have to appreciate the detailed financial implications of what they are doing. Testamentary capacity is a question of fact in each case.
  • If there is evidence of undue influence surrounding the making of the will. Undue influence requires an element of coercion upon the will maker and is a question of fact in the circumstances. Obtaining evidence of coercion for this sort of claim is usually very difficult.

Each of the above requires an investigation into the circumstances surrounding the making of the will. If you have suspicions about the will, the first stage in investigating a claim would be to request a copy of the will and the contemporaneous documents from the solicitor who prepared the will. This is done in the form of a Larke v Nugus request which places an obligation on the solicitor to provide both the papers and a statement which should include information such as the circumstances under which the deceased made his or her will, how he or she gave instructions to the solicitor about his or her intentions and whether he or she exhibited any signs of memory loss or confusion at the time, who made the appointment and who attended the meeting to discuss will instructions.

The production of this information allows for a full investigation into any potential claim to dispute the validity of a will.