Have you been asked to provide a statement as to the circumstances surrounding the preparation and execution of a will and to also provide copies of the will file? Did the request refer to Larke v Nugus? This article covers some key issues you should consider.
What's on this page?
The English case of Larke v Nugus
Larke v Nugus [2000] WTLR 1033 is an English case concerning resistance to a grant of probate of a will on the grounds that it was procured by undue influence and the testator lacked knowledge or approval of the will. The case was decided in 1979 but somewhat surprisingly was not reported until 2000. Larke (the executor of the estate) was successful in resisting the challenge but the Court nevertheless allowed the unsuccessful plaintiff to have her costs paid out of the estate. This was because Larke, who was not only the executor but also the solicitor for the estate had refused to provide Nugus with a copy of the will or details of the circumstances in which it was prepared and signed, despite there being legitimate suspicions about aspects of the will. Larke was a material witness of fact whose evidence could have proved crucial in avoiding a trial.
The Victorian case law
LPLC has seen several instances where Australian lawyers have sent letters to solicitors who prepared wills citing Larke v Nugus as authority for an expansive proposition that any lawyer who prepared a will is obliged to hand over their will file and provide evidence about their instructions and actions whenever a dispute is raised about the circumstances in which the will was signed.
In Re Gardiner (No 3) [2018] VSC (Gardiner (No 3) Case), McMillan J rejected an expansive interpretation and application of Larke v Nugus holding that Larke v Nugus did not stand as authority for a broad-sweeping proposition requiring executors or solicitors to provide evidence or produce will files in all cases. At paragraph 109 of the judgement McMillan J said:
‘This Court has not found any reported decisions where Larke v Nugus has been applied in Australia. Further, upon a proper consideration of the decision, it does not stand for the proposition that the applicants have a right to issue a Larke v Nugus letter to the plaintiffs requesting information concerning the making of the ‘chain of wills’ and the relevant will files, or that such an application creates a corresponding obligation on the plaintiffs to respond to such an application.’
McMillan J, also commented on the importance of client confidentiality noting that this continues after the client’s death. [see paragraph 120 of Gardiner (No 3) Case]
NSW cases
Once Re Gardiner (No 3) the Supreme Court in New South Wales has considered applications for preliminary discovery of will instruction documents. In Re Estate Barzacca [2025] NSWSC 1252 (27 October 2025) the court ordered a discovery affidavit on the circumstances in which a will was prepared and executed in a proceeding where a probate caveat was sought to be removed.
In Fuda v Dawes [2026] NSWSC 360 (15 April 2026) the court order preliminary discovery of the will files held by the decease’s practitioner in order to assist the plaintiff in deciding whether to bring proceedings to revoke a grant of probate.
So, while Larke v Nugus type requests letters do not need to be actioned there is an avenue for making preliminary discovery applications to the court where each matter will be considered on its own facts.
What should you do?
Practitioners should be careful about citing Larke v Nugus, as ground for requesting access to a will instruction file and instead consider if there are grounds for preliminary discovery.
Practitioners who receive a Larke v Nugus request from another practitioner or person, should:
The relevant contracts or long-term leases to which GST withholding applies are contracts for:
- give objective consideration to the facts and allegations presented
- think about the issue of privilege and confidentiality
- draft a statement for your file but don’t send it without instructions
- if you or your firm drew the disputed will and are also acting as solicitor to the estate in defending the will:
- consider your position as a potential material witness and whether you or your firm have a conflict and should cease acting for the estate
- advise the legal personal representative about legal professional privilege and the Civil Procedure Act 2010 (Vic) obligations to minimise the scope and expense of litigation and discuss the pros and cons of releasing any information or material in response to the request, including a statement.
- do not provide copies of any files, documents or your statement without the informed consent of the deceased’s personal representative.
