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Access and disclosure of an incapacitated person’s will

02 March 2017

This Law Society guidance has been eagerly awaited by solicitors and other professionals.

The practice note is available here which includes a very useful flow chart and precedent letters (see section 12 here).

Background

Property and financial affairs attorneys and deputies owe a duty when making financial decisions, so far as is reasonably possible, to consider succession plans made by the person for whom they act. Having knowledge of the contents of the will and/or codicils(s) means that the attorney or deputy is in a position to act in the best interests of the person for whom they act.

What does the guidance do?
This guidance is for solicitors and clarifies when a solicitor can disclose a copy of a client’s will and/or codicil(s) to a property and financial affairs attorney or deputy in circumstances where the client has lost mental capacity.

Practice Points
The practice note provides comprehensive guidance in this area.  Some of the key practice points to note are:

  1. Where a client retains mental capacity, the client must agree to the disclosure of the contents of their will and/or codicils;
  2. An attorney must provide evidence that the client lacks mental capacity before the contents of a client’s will and/or codicils can be disclosed.  A deputyship order will be sufficient evidence to prove mental incapacity for this purpose;
  3. If the client has made it clear in their original instructions that his or her will is not to be disclosed prior to his or her death, it should not be disclosed, unless ordered otherwise by the Court of Protection.  If the solicitor believes that disclosure is not in the client’s best interests, the solicitor will need to seek a variation of the order;
  4. The original will and/or codicils should be retained by the solicitor in accordance with the original retainer, unless ordered otherwise by the Court of Protection; and
  5. Using the recommended precedent letters to manage the disclosure of a client’s will and/or codicil is likely to be helpful to establish good practice.

Case Studies

The Law Society provide 2 illustrative case studies of possible adverse outcomes which can occur without knowing the content of the will

Jack’s case

Jack has made a will giving his house (currently worth £300,000) to his nephew, Paul, and the residue (about £20,000) to charity. He also made a property and financial affairs Lasting Power of Attorney (LPA) without any restrictions in favour of Paul. This has been registered with the Office of the Public Guardian.

Jack subsequently has a stroke and is no longer able to live in his own home. Paul decides that he must sell the house to pay for Jack’s care.

The effect of selling the house is that when Jack dies, the gift in the will to Paul fails and he gets nothing. The charity benefits from the whole of the estate. This was not what Jack intended.

However, if Paul is aware of the contents of the will, he can apply to the Court of Protection for either a statutory will to be made so that Jack’s wishes are followed, or obtain an order for sale which, under the Mental Capacity Act 2005, ensures the gift is saved (schedule 2, paragraphs 8 and 9 of the Mental Capacity Act 2005 enables the preservation of an interest in property which is disposed of on behalf of a person who lacks mental capacity under a court order, where that interest in property is the subject of a gift under the person’s will).

June’s case

June has made a will in which she gives her friend Margaret her premium bonds. At the time of making the will, these are worth £500. June’s son David is the sole residuary beneficiary. David is unaware of the contents of the will.

June has dementia and lacks mental capacity to manage her finances. David is appointed as June’s deputy. He decides he should invest £49,500 of June’s money in premium bonds.

When June dies, David discovers that Margaret will now get £50,000 premium bonds (much more than his mother ever intended) and he gets less than intended.

Had David been aware of the will, he would have invested his mother’s money differently so as not to frustrate June’s succession plans.

Acknowledgment: these extracts appear in the Law Society Practice Note: Access and disclosure of an incapacitated person’s will
Lynne Bradey View Biography

Lynne Bradey

Partner
Sheffield

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