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Under English law, a person is allowed to choose who benefits from their estate and how.
However, there are certain safeguards – if a person who lacks mental capacity or is subject to undue influence attempts to make a Will, then it can be declared invalid, and if the Will does not make ‘reasonable’ financial provision for a family member or dependant then it can, in effect, be varied to do so.
When presented with a Will which raises concerns, the first step is often to obtain more information and to seek to look at documents relating to the Will and its preparation.
This may involve seeking a copy of the ‘Will file’ from the solicitors who drew up the Will, together with looking to obtain further documents.
This contentious probate article provides a brief introduction to the types of documents that can be obtained.
Solicitor’s Will file
A person who is concerned about the validity of a Will can request information and documents from the solicitors who drafted it.
This is usually done by submitting a ‘Larke v Nugus request’ (named after the relevant case) in which you request a copy of the ‘Will file’ from the relevant firm.
You can usually expect to find the following in a Will file:
• Notes of any calls and meetings with the person who made the Will (referred to as the ‘testator’). These should contain details of the instructions provided by the testator, what was discussed during the meeting or calls and the solicitor’s advice.
- Any letters sent to the testator setting out advice and providing drafts of the Will.
- A copy of the executed Will.
- A copy of any previous Wills (if the testator had a previous Will and passed a copy to the Will drafting solicitor).
Solicitors have professional obligations when receiving a Larke v Nugus request and usually, provided the executor(s) appointed under the Will consent, the relevant documents will be provided.
However, there may be some categories of documents which are not included in the response to a Larke v Nugus request because they are confidential or because the solicitor does not hold them.
Letter of wishes
A letter of wishes is a document drawn up to accompany a Will. It is not legally binding but provides guidance to the executors (or will trustees) as to how to administer the relevant parts of the estate.
The starting point is that, while Wills are public documents once a Grant of Probate has been issued, any accompanying letters of wishes remain confidential between the deceased and their executors.
Although traditionally letters of wishes are not viewed as disclosable, in recent cases the direction of travel appears to be towards the idea that they should be disclosed in certain situations.
We have recently written commentary on a case in this area if you are interested in further information.
There may, therefore, be an argument that a letter of wishes should be disclosed alongside the will file materials detailed above.
Other evidence
Medical records will often be important in establishing whether a testator had capacity at the time of making their Will (or if they were susceptible to undue influence or otherwise vulnerable at any time).
A Will file might contain notes as to the impression formed by the solicitor regarding the testator’s mental health and – if one has been obtained – any opinion from a GP or other medical practitioner regarding this issue.
However, in addition, a person looking to establish the testator’s health and mental capacity at the relevant times can apply under the Access to Health Records Act 1990 for medical information.
Finally, the evidence from any witnesses or people who were present around the time of the Will being made can be highly relevant, though care needs to be taken in gathering such information.
There are usually several different options available for obtaining information.