Law Society guidance clarifies when a solicitor can disclose client's will

The Law Society has published guidance to clarify when a solicitor/will writer can disclose a copy of a client’s will to a property and financial affairs attorney or deputy appointed by the Court of Protection in circumstances where the client has lost mental capacity.

The guidance, which is in the form of a practice note, was jointly developed by the Law Society, the Solicitors Regulation Authority (SRA), the Legal Services Ombudsman, the Office of the Public Guardian, the Court of Protection and STEP.

The guidance explains that having knowledge of the contents of the will and/or codicil(s) places the attorney or deputy in a position to act in the best interests of their client because attorneys and deputies owe a duty when making financial decisions, so far as reasonably possible, to consider any succession plan made by the person for whom they act. The guidance makes it clear that the will forms part of the property and financial affairs of the donor which the attorney or deputy has authority to manage as an agent. Therefore, if there are no instructions to the contrary within the lasting or enduring power of attorney or court order, a full copy of the will can be disclosed unless the solicitor/will writer has any cause for concern.

The note also covers best practice in regard to disclosure, and the actions a solicitor/will writer should take if they have concerns over whether an attorney or deputy might act in breach of their statutory or fiduciary duties.

Source: The Law Society: Access and disclosure of an incapacitated person’s will (1 March 2017).