A perhaps slightly pedantic question, but imagine firm A is holding a Will for person A, who has lost mental capacity. Firm A did not prepare the Will though, Firm B did.
Attorney for Person A then requests the original Will to be passed to Firm B as Firm A will not be dealing with the probate when Person A passes away (Firm B will be) and this therefore simplifies matters. Nothing in the LPA for Person A explicitly mentions their Will.
In that situation, should Firm A release the original Will to firm B? I cannot find any specific guidance on this question on the SRA site or elsewhere, so any help would appreciated as I would like to be surely of our obligations.
Yes. The Will is property of the client. The attorneys are their property and financial attorneys are therefore competent to give those instructions and to expect them to be complied with, just as if the client had given them. There was a practice note to this effect some years ago about access and disclosure of an incapacitated persons will
Thank you for your reply, my only concern there is that the guidance you are thinking of only refers to releasing copies of the Will and says that the original should be retained. But here the attorney wants us to release the original. Albeit we didn’t write the original.
I would still go back to basic law principles and would argue that a property and affairs attorney is entitled to take possession of the donor’s will, unless there are any counter stipulations in the LPA, or amongst the papers with the Will, or as part of your retainer.
Not sure that there is any point in law or otherwise in parting with possession of an original will, as a copy will surely be sufficient for any attorney/deputy?
I feel it is up to the party/firm requesting the original will to specify precisely why they think they need this, if they can.
Yes, I would agree. A copy should be enough to allow the attorney to go about their duties in full knowledge of the donor’s wishes. I was curious whether the fact that the Will being held by Firm A was not originally written by them would affect the guidance to hold the original but I cannot see or find any reason to suggest that it does. And no convincing reason provided for releasing the original by the attorney.
