Will: Inadequate response to Larke v Nugus request
A solicitor has been ordered to pay costs of £5,700 after she had to be summonsed to be cross-examined over a contested will that she drafted.
Chief Master Shuman, sitting in the Family Division, said: “Solicitors who are will drafters are expected to disclose information about the drafting of the will. The delays in this case have been lamentable and have not helped these parties one jot in terms of trying to reach a resolution to the matter.”
On 27 March 2023, shortly after Derek Addision died and with a dispute over his most recent will brewing, two of his children sent a so-called Larke v Nugus request to Michelle Niaz, a solicitor at Lancashire firm Lewis Mitchell. This asked her questions about the circumstances in which she drew up the will.
The judge explained: “The Larke v Nugus request is designed to provide pre-claim disclosure and avoid legal costs being wasted in potentially futile litigation.”
Despite chasing, Ms Niaz did not respond except to say she was seeking the executors’ consent, and finally replied on 7 July 2023.
Chief Master Shuman said it was not satisfactory, however. “The response is a very short summary of the matters that should have been in a far more detailed Larke v Nugus form.”
The applicants sought a summons under section 122 of the Senior Courts Act 1981, requiring Ms Niaz to attend court to answer questions in the High Court about the making of the will.
This happened and, in a ruling from August only published yesterday, the applicants sought their costs of this.
Counsel for Ms Niaz argued for no order as to costs. “She raises in particular that the respondent has provided a witness statement, that she has suffered from significant mental health difficulties which she says is the reason why there has been a regrettable failure to respond earlier in these proceedings.”
But the judge said the witness statement, which exhibited a brief attendance note from when she wrote the will, was inconsistent with the July letter in various respects.
“In a case where there is obviously suspicion about the background to matters, it did not help matters for this witness statement to be not as full as it could have been. The respondent has now explained matters in her evidence today and set out matters far clearer than is contained in her attendance note or in her witness statement.
“So, I am satisfied that it was appropriate for the applicants to not only issue the summons but also to pursue this to hearing today and for the respondent to be cross-examined as she was in this matter. It has, to an extent, clarified matters.”
Chief Master Shuman concluded that it was appropriate to order Ms Niaz to pay costs. The applicants sought £9,290 plus VAT, which she said was not “entirely” proportionate and reasonable.
“Although it is relatively rare for this type of case to come to court and for a solicitor to be cross examined under the procedure in section 122 of the Senior Courts Act, it is still a relatively straightforward case under the non-contentious probate rules.”
She reduced the costs Ms Niaz has to pay to £4,775 plus VAT, a total of £5,730.
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