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Solicitors owe a strict duty of confidentiality to their clients. Traditionally a solicitor would only be able to release a copy of their client's Will to either their own client or to a third party where disclosure has been specifically authorised by the client or when acting by way of a court order.

However, over recent years the legal landscape has changed and further guidance has been made available by the Law Society following an agreed approach with interested parties including the Office of the Public Guardian (OPG) and the Court of Protection (COP).

There may be circumstances where a property and financial affairs attorney or a COP appointed deputy may feel they need to see a Will in order to carry out their duties where the person who made the power of attoney (the Donor) has lost mental capacity.

Why might an attorney or deputy need to see a Will?

Attorneys and deputies have an ongoing duty so far as is reasonably possible not to interfere with the testamentary plans of the person they act for. This has been established by case law and is bolstered by section 1(6) of the Mental Capacity Act 2005.

According to the issued guidance the attorney or deputy will be better placed to act for the Donor if they have seen the Will as they will be able to:

  • Take advice
  • Make appropriate investments
  • Arrange for safekeeping and storage of assets
  • Avoid the accidental disposal of assets specifically bequeathed by a Will

 An example of this last point would be where a Will gives a specific property to one individual but the residue of the estate to another. If an attorney or deputy is unaware of this then they may sell a property and unintentionally disinherit an individual.

Who can solicitors take instructions from?

Where a Donor has lost the ability to manage their own affairs and has made a power of attorney, the attorney becomes the agent for the Donor. In addition if an individual is appointed as a deputy by the COP then that deputy will become a statutory agent. Therefore, on the face of it, a simple request from the attorney or deputy would appear to suffice.

Should the Will be disclosed on request?

The guidance issued by the Law Society states that a Will forms part of the financial affairs belonging to the Donor and unless the Donor had provided evidence to the contrary the Will should be disclosed.

However, that presumption to disclose is subject to the Donor's wishes. If the Donor retains mental capacity then a solicitor should consult with their client to determine whether the client wishes for the Will to be disclosed.

The original Will should be retained by the solicitor in accordance with the terms of the original retainer. The attorney or deputy should only be provided with a copy.

However, the solicitor should first check whether the Lasting Power of Attorney or the Enduring Power of Attorney contains a restriction about when the attorney's powers can be exercised. If attorneys can only act if an individual has lost capacity then the solicitors should satisfy themselves that the Donor has indeed lost capacity and may need sight of a medical report confirming the position.

When should the Will not be disclosed?

If the Donor has given specific instructions not to disclose the Will for example by way of guidance in the power of attorney or by a separate letter of instruction then the Will should not be disclosed.

In addition, if the solicitor is aware or has reason to believe that the attorney or deputy has acted or proposes to act in breach of their legal duties then they may refuse to disclose the Will, This may arise for example if there are concerns that assets are missing or an attorney or deputy is seeking to have assets transferred to themselves.

What can an attorney or deputy do if either a solicitor refuses to release a copy Will or the donor had set out instructions for the Will not to be disclosed? In these circumstances it would be possible for an attorney or deputy to apply to the COP for a specific ruling to see if such disclosure would be in the donor's best interests.

If the donor's wishes are explicit and no one would be prejudiced by the non-disclosure of the Will then the COP would be unlikely to agree that the Will be disclosed.

What if I do not want my Will disclosed but have not left specific instructions?

So long as an individual retains capacity they can always let their solicitor know whether or not their Will should be disclosed to their attorney or a deputy at any time.

People should be mindful though that if they do state that their Will should not be disclosed under any circumstances that attorneys may feel they have no option but to apply to the COP for disclosure where a donor has lost capacity and then the costs of doing so would most likely be borne by the donor's estate.

An alternative could be to allow disclosure in a more controlled way.

We are able to advise on strategies and solutions to balance the competing needs in this complex area.

This article is taken from Private Wealth newsletter - December 2018