New Practice Note – Access & Disclosure of an Incapacitated Person’s Will

Until earlier this week when, in conjunction with the SRA, Legal Services Ombudsman, OPG, Court of Protection and STEPS, the Law Society issued a Practice Note there had been no unified guidance to assist a solicitor in making a decision about whether they can or cannot disclose the will and/or codicils of an individual.

The Practice Note aims to explain and clarify when a solicitor can disclose a copy of a client’s will to a Property and Financial Affairs Attorney or Deputy appointed by the Court of Protection where a client has lost mental capacity.

Key areas discussed in the guidance include:

  • Who is your client – and so to whom do you owe a duty of care.
  • Duties of an Attorney or Deputy  and some useful case studies which demonstrate those duties.
  • Instructions at the time of making a will or LPA.
  • The original will forms part of the client’s property and should be retained by the solicitor with a copy only given to the attorney or deputy.
  • A client may give instructions for non-disclosure in which case the solicitor must honour the client’s wishes.
  • Incapacity issues.
  • Deputy / Attorney concerns.

Template letters are also included for solicitors to notify a donor that a request has been made by an attorney or a deputy for a copy of the will,  to send to a deputy with a copy of a will and also a refusal letter where a will is not being disclosed.

There is also a helpful flowchart of the steps a solicitor should take where a donor (client) has not given express prior consent to disclosure of his / her will.

If you would like further information about the above, to subscribe to our free Legal Eye newsletter, or register for our regular new compliance bulletins, please contact Rhonda Treacy-Hales at [email protected]


This article was submitted to be published by Legal Eye as part of their advertising agreement with Today’s Wills and Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.

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