Since 1st March 2017, it has been accepted that a donor’s will can be disclosed to the attorneys of their Property and Affairs Lasting Power of Attorney (LPA). Before this date, it was believed that the will could only be disclosed if the LPA gave express authorisation for this.
Can the will be disclosed whilst the donor has capacity?
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.
What happens after the donor’s death?
LPAs cease automatically on the death of the donor. The will therefore cannot be disclosed to the attorneys after the donor’s death. The holders of the will instead owe a duty of confidentiality to personal representatives.
Should there be an instruction in the LPA?
Whilst the attorneys will have this power as standard, a written instruction may be included in the LPA where:
- The donor wishes it to be clear that they have the power, as the attorneys may not themselves be aware.
- The donor wishes to refuse consent to disclose the contents of the will to the attorneys.
- The donor only wishes to permit disclosure in certain circumstances.
Why should the attorneys know the contents of the will?
It is advisable to continue to allow the will to be disclosed to the attorneys. The will may contain specific gifts and, without knowledge of the will, the attorneys may dispose of or sell the contents of those gifts during the donor’s lifetime, causing that gift to fail.
For example, if the will contains a specific gift of the contents of a specific savings account. Without knowledge of the will, the attorneys may close this account and move the contents to a different account to take advantage of a higher interest rate. Doing this could cause the gift in the will to fail.
There have been a small number of cases where it has been held that moving money to a separate savings account did not cause the gift of the old savings account to fail, but these cases are limited to their own specific facts and were made after considerable hesitation.
Instructions on disclosure outside of the LPA
Instead of including specific provisions in the LPA itself, the donor could instead leave instructions in writing to the person or body holding the will on how the will could be disclosed to the attorneys.
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.