We are frequently contacted by individuals wanting to confirm if we are holding a family member’s will.
This might be because:
- their family member has asked them to confirm the date and location of the will so they know that the copy they have is the right one;
- the home that their family member is moving into want to know information in the will regarding funerals;
- they have been told that death is imminent, and they need to find out if their family member wishes to be buried or cremated; or
- with their family member now in a care home, they need to clear that person’s house and therefore find out what they should keep and what they should sell.
Whilst we wish to be helpful,we have a duty to the person whose will it is to keep it safe and confidential, except in certain circumstances. We must ensure someone is not asking to see a will for the wrong reasons or with the wrong intent.
Following a practice note issued by the Law Society, it is now possible for an attorney or a Deputy (i.e. someone with formal authority to deal with a family members property and financial affairs) to ask to see a will, unless the person who made it has already stated otherwise.
Therefore, when you make a will or a lasting power of attorney you should be asked if you are happy for your attorney or Deputy to see your will.
A letter of wishes is signed to this effect and kept with your will. The system has changed from opting in to allow your family to see the will to opting out and refusing permission.
If we agree to send out a copy of your will we send it to you first, so you can pass it on to the individual that requested the copy if you so wish. Sometimes this letter can come as surprise as this may be the first indication you have someone is requesting to see your will.
Even if a copy of a will is given to an attorney or Deputy, they have an obligation under the Mental Capacity Act 2005 to follow the will owner’s wishes regarding their assets whilst they are alive.
Additionally, an attorney or Deputy must follow the will owner’s wishes if changes to the will are needed.
Any changes to a will that are made if the will’s owner has lost capacity would require an attorney or Deputy to apply to the Court of Protection for a court order.
A change to your will might be needed if:
- your home has been sold meaning the person was due to inherit it now stands to inherit nothing;
- there are more grandchildren since your will was originally made and you’d like to include them in your will ; or
- people named in your will have died before you and no provision had been made as to who should now inherit their share of your estate.
If you have any questions or concerns, please get in touch and we can advise you on your specific requirements.