As an experienced wills and probate solicitor, I get calls several times a week from clients requesting an appointment because “Mum (or Dad) wants to change their will.” And we’re happy to help, but there are some important facts that you should know...
Firstly, it’s very reassuring to know that the person concerned has made a will in the first place. A will is an important legal document and everyone should have one. Without a will, the rules of intestacy apply, and you risk triggering family rows over the inheritance (or the estate passing to the Crown if there are no surviving relatives).
Secondly, it is also good to know that the person has decided to review their will and not simply left it to gather dust in a cupboard. For the record, it’s worth checking your will at least every three years. Financial and family circumstances can change suddenly – and a will should always be kept up to date to reflect this. (Remarriage, for example, will invalidate an existing will.)
Crucially however, we must take instructions from the person who has made the will – even though they’ve asked you to enquire about how to change it. We must speak with the person concerned. After all, it is their will.
Rest assured, you can be there when we meet with them. We’d very much like to see you too.
However, it is important to note that we will need to see the client on their own so that we can ensure there is no undue influence. So although you may accompany the person concerned to the office, we may ask you to leave the room at some point so we can chat with the client alone.
The person who made the will is called the testator. They may have made the will some time ago and their power to take decisions may have since diminished. We’re able to help families in this position because Coles Miller is accredited by:
We’ll always give expert legal advice in plain English. You and your loved ones will always be treated with dignity and respect as we help you to take important decisions that involve great emotional sensitivity.
As wills and probate solicitors, we’re always very patient and thorough; we need to be certain that the client has the mental capacity to review their will.
In some cases, this can involve seeking the advice of a GP or consultant to support a will application. This also applies to lasting powers of attorney.
Find out more here about making a new will.
A Lasting Power of Attorney (LPA) is a document that gives someone the legal authority to take decisions on behalf of the person (‘donor’) who set up the LPA.
The usual reason for setting up an LPA is so the donor can ensure that – if they ever lose mental capacity – a loved one or other trusted individual can take the right decisions on their behalf to ensure they are cared for properly.
There are two types of LPA (and you really need both):
Some people mistakenly assume that the granting of a Property and Financial Affairs LPA gives them the legal right to change a donor’s will. It does not!
The power to change a will rests solely with the individual who made it. And for that will to be valid, they must have had mental capacity at the time they made it.
If they subsequently lose mental capacity, and there is a Property and Financial Affairs LPA in place, then the nominated attorney(s) can take decisions about the person’s finances on their behalf – unless it involves changing their will!
Even if someone is appointed as an attorney under an LPA, they cannot use that authority to amend the testator’s will. They can apply to the Court of Protection for a statutory will but this is a long, complex and potentially costly process so it is worth doing only if:
Ultimately, if a person wishes to update their will, they must do so through a valid legal process, such as creating a new will or making a codicil (an addition or amendment to an existing will).
It is important to follow the correct legal procedures when changing a will. Getting it wrong could invalidate the will. This can be an issue with DIY/template wills downloaded from the internet.
Find out more here about LPAs.
You can’t use an LPA to change a will, primarily because of the fundamental principles and safeguards within the legal framework governing wills and LPAs:
For these reasons, the law maintains a clear distinction between wills and LPAs.
So it’s important to speak with specialist wills and LPA solicitors who can offer you the best overall solution for your specific family circumstances. As a law firm, Coles Miller has considerable experience in dealing with the:
For more information about wills and lasting powers of attorney, contact Coles Miller Associate Solicitor Kerry Hay.
Kerry is a member of the Society of Trust and Estate Practitioners (STEP) in recognition of her extensive legal expertise in wills and probate matters. She is also accredited to Solicitors for the Elderly. Kerry is based at our Poole town centre head office.