Withdrawal of a Will stored with a solicitor

Any advice would be much appreciated.

I met with a client a few weeks ago in relation to making a new Will. She informed me that her husband had been diagnosed with dementia in June 2015. She told me that they wanted to make Wills that protected their individual half shares in the house. Mr did attend but was not vocal and seemed to just go along with what she said. When I attempted to get his input he did not seem to understand.

I explained that we would need to get confirmation from his GP that he has testamentary capacity. It appears that she was not happy with this as she has now instructed another firm who are presumably happy to go ahead without the assessment.

The other firm have now sent me an authority written by Mrs and signed by Mr and Mrs requesting their previous original Wills. Given that I am not convinced he has the capacity to change his Will, should I be withholding it until such a time as the other firm confirms he has the capacity to?

Also, if Mrs has an LPA appointing her Attorney for Mr - does this give her the authority to withdraw the Will on his behalf? (I understand she does not have the authority to revoke or change it) Given that an LPA gives her authority to deal with his property during his life and the Will does not take effect until his death, does this mean she can not deal with even the withdrawal of the Will despite it being his property…?

Thanks in advance

Kirsty Poston
Keith Park Solicitors

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Since the wife told you that her husband had been diagnosed with dementia,
and your own observations seem to confirm this, I feel you must assume that
he lacks capacity unless/until you receive evidence to the contrary.
Therefore you should refuse to forward his will, simply explaining this to
the other solicitors [who may be unaware of the capacity issue if they have
only been contacted by the wife].

There was some discussion on the forum about the position of attorneys
concerning wills some years ago. Basically, an attorney has no power to
change a will [without an order of the CoP] so does not need the original.
There was some debate as to whether an attorney is entitled to know the
contents of a will - especially if this contains a specific legacy which
might inadvertently be adeemed, but I feel that your duty of
confidentiality applies unless/until the CoP orders otherwise. In your
case, the wife is presumably aware of the contents of the will, so this
should not be an issue,

Kevin Mullen

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There have been previous postings on the Forum with regard to an attorney’s authority overt P’s will. Even under a registered enduring power (for example), the attorney has no authority to access the will, or a copy thereof, unless specifically provided for within the EPA itself. I believe this may have caused significant difficulties in some situations where the attorney has been concerned they might unwittingly cause substantial gifts under the will to adeem. Whilst I understand the legal position might be under review, until there is a change in the law the attorney cannot require a third party to release to them the will or a copy thereof. The Court of Protection can direct the release of the will, or a copy thereof, to the attorney, but that is only once the Mental Capacity Act has been engaged.

Turning to the request from the other law firm, under the Mental Capacity Act, P is assumed to be capable until it is shown that they are not. Have you had a long standing relationship with the clients, and so may reasonably be able to assess the husband’s behaviour? If so, and the wife has gone to a firm with no prior knowledge of the husband, this would appear a cause for concern and, perhaps, a discussion with the Law Society to clarify your personal position might be appropriate.

If there has been no longstanding relationship, I would be inclined to ask the new firm if they are satisfied the husband has the requisite capacity to authorise the release of his current will to them. If they say he has, then I believe it would be difficult to refuse to release it to them. However, you might make a certified copy and keep it on file together with a note expressing your concerns, which should be kept together with the various exchanges with the other law firm.

Clearly, whichever way this matter is addressed, it might be less than satisfactory, however, I believe that the above is the last worse option. A blanket refusal to cooperate is unlikely to enable the situation to be resolved in any beneficial way.

Paul Saunders

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