On 1 March 2017, the Law Society published guidance on the circumstances in which a solicitor should disclose a copy of a person’s Will to a property and financial affairs attorney or deputy in circumstances where the client has lost mental capacity.
Access and disclosure of an incapacitated person’s Will
The Law Society has confirmed that:
“The Court of Protection has made it clear that property and financial affairs attorneys and deputies owe a duty when making financial decisions, so far as is reasonably possible, not to interfere with the succession plans made by the person for whom they act (Attorney-General v The Marquis of Ailesbury (1887) App Cas 672 and Re Joan Treadwell (July 2013)). It is compatible with section 1(6) of the Mental Capacity Act 2005; this requires that before an act is done or a decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Having knowledge of the contents of the will and/or codicils(s) means the attorney or deputy is in a position to act in the best interests of the person for whom they act and in particular may:
- Take and act upon appropriate professional advice
- Make appropriate investments
- Apply to the court for an order to save a specific legacy (so far as possible), where disposal of the asset is required
- Apply to the Court for a statutory will to ensure that it reflects the intentions of the person who lacks mental capacity and the relevant circumstances, and
- Arrange for safekeeping and storage of the asset.”
Accordingly a solicitor should provide a copy of the Will to a properly appointed deputy or attorney unless there is a good reason not to. An example of a good reason is where the incapacitated person at the time of making the Will expressly instructed the solicitor not to disclose the same.
When requested to disclose a copy of the Will, the solicitor may request evidence that the individual in question is incapacitated.
The Law Society’s guidance note sets out some examples of scenarios which should cause solicitors concern in respect of a request to disclose a copy of the Will. Those examples are as follows:
- The attorney or deputy wishes to transfer or has transferred the client’s assets to himself or herself or someone who is related or connected to them.
- An indication of missing or converted assets.
- The attorney or deputy has had a unexpected change in lifestyle or circumstance.
- Care fees are not being paid.
- An investigation into and/or application for the attorney’s or deputy’s removal is in the process of being made.
- The attorney or deputy refuses to disclose the residence of the client.
How Nelsons can help
Kevin Modiri is a Partner in our expert Inheritance Disputes team.
If you have any questions in relation to the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.