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from: The Will Company

Can the terms of a donor’s Will be disclosed to their attorneys?

When attorneys are acting under a Lasting Power of Attorney (LPA) for Property & Financial Affairs (P&A) or under an Enduring Power of Attorney (EPA), they may wish to consult the terms of the donor’s Will. There may be genuine reasons for them to do this, but it should always be considered whether they have the authority to do this.

This article will examine how and when the contents of a Will can be disclosed to attorneys, what options a donor has for disclosure and why it can be helpful to allow the disclosure of the contents of the Will.

Can the contents of the Will be disclosed to attorneys?

Whilst the donor still has mental capacity, they can choose whether they wish for their Will to be disclosed. As such, a Will should not be disclosed to an attorney whilst the donor has capacity without the consent of the donor.

Once the donor has lost capacity, the terms of the LPA or EPA would need to be consulted. It was previously thought that the contents of the donor’s Will could not be disclosed to their attorneys unless the LPA or EPA gave express authority for this. Since 1st March 2017, it is now accepted that the contents of the donor’s Will can be disclosed to their attorneys even if the LPA or EPA does not give express authority. Providing the LPA includes no restrictions preventing disclosure, the terms of the Will can be disclosed to the attorneys.

What happens after the donor’s death?

LPA and EPAs cease automatically on the death of the donor. The Will therefore cannot be disclosed to the attorneys after the donor’s death and should only be disclosed to the deceased donor’s personal representatives.

What should be included in the LPA?

Although the terms of the Will can be disclosed to the attorneys without the LPA including specific authority, if the donor wishes for the attorneys to be able to see the terms of the Will it is helpful to include specific authority to make it clear to the attorneys that they have this power as the attorneys may not be aware themselves.

If the donor wishes to refuse consent to disclose the terms of the Will to their attorneys, or wish to only permit disclosure in certain circumstances, the LPA should include instructions to restrict the attorneys’ ability to see the terms of the Will.

Why may the attorneys need to know the terms of the Will?

The Court of Protection has made it clear that attorneys under a P&A LPA or an EPA owe a duty to the donor when making financial decisions to, so far as is reasonably possible, not to interfere with the donor’s succession plans. This is compatible with S1(6) MCA 2005 which requires attorneys to consider, before acting, whether the purpose of a proposed action can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Knowing the contents of a Will can help attorneys fulfil their duties such as by taking investment advice and ensuring certain assets are insured or safeguarded.

This is particularly relevant if the Will contains specific gifts, for example of a property or specific bank account. Without knowledge of the terms of the Will, the attorneys may sell this property or close the bank account and cause the gift in the Will to fail. There are no statutory provisions to ensure that the beneficiary of a failed gift instead benefits from a cash sum due to the attorney selling the asset. Deputyships however do allow for this due to the provisions of Paragraph 8 of Schedule 2 Mental Capacity Act 2005

Can the attorneys amend the Will?

Attorneys do not have the authority to amend the donor’s Will or make a new Will for the donor. It is not possible to give them this authority. If a person no longer has capacity to make a Will, an application will need to be made to the Court of Protection.

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