When should an incapacitated person’s Will be disclosed

It is common practice for a deputy to see a copy of the Will of the incapacitated person they are representing.

However, on 1 March 2017, the Law Society issued new guidelines were the solicitors who acted for and held the Will of a person who has lost capacity to disclose that Will to the property and affairs deputy.

Deputies have a duty when making financial decisions not to interfere with P’s succession plans.

It is the duty of the deputy to discover what the wishes of P are. By doing so the deputy would require a copy of P’s Will. If at the time the Will was made if no contrary instructions were provided, then a deputy would be entitled to see the Will. There would be a duty for the solicitor making the Will to seek clear instructions whether the Will is not to be disclosed in such circumstances. If that were so, then the solicitor (on the request of the deputy) should not disclose the Will without a specific court order. Upon hearing evidence, it will be for the court to determine if the Will should be disclosed to the deputy.

In conclusion, it can be seen that the deputy must be very careful not to dispose of any assets of P without first attempting to seek a copy of the Will. There could be a number of reasons for this including P’s succession plan, inheritance issue or why certain family members have not been included in the Will.

If you are a lay deputy and need specific advice, please contact our Court of Protection team.