I’ve been instructed by a client to draw up a will and prepare a lasting power of attorney. Would the appointed attorney be entitled to a copy of the donor’s will?
The property and financial affairs attorney is the client’s agent, and the will forms part of the property and financial affairs, which the agent is authorised to manage.
Unless the disclosing solicitor has cause concern, a full copy of the will can be disclosed to the attorney if there’s no instruction to the contrary within:
- the lasting power of attorney (LPA)
- the enduring power of attorney (EPA), or
- a court order
It’s advisable to discuss and document the issue of disclosure of the donor's will at the time of making the will and to confirm this at the time of making the LPA.
Having advised your client as to the consequences, you should obtain instructions as to whether disclosure is to be denied, or the circumstances in which it’s permitted.
In a situation where a court order requiring disclosure of the will has been obtained, you must comply with the order and disclose the client’s will.
However, if you believe disclosure is not in the client’s best interests, you’ll need to seek a variation of the order by submitting a witness statement to the Court of Protection outlining why the will should not be disclosed.
A witness statement should be made on Form COP4.
You may also ask the Court of Protection for authority for payment of your costs to be paid out of the client’s estate.
For more information, see our practice notes on lasting powers of attorney and access and disclosure of an incapacitated person’s will.