Can I Help My Mum Or Dad To Change Their Will?2nd Oct 2023
Changing A Will
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.
Does The Person Concerned Have The Mental Capacity To Change Their Will?
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:
- Solicitors for the Elderly
- Dementia Friends, an Alzheimer’s Society initiative.
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.
Can A Power Of Attorney Change A 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):
- Health and Welfare
- Property and Financial Affairs.
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:
- the estate is large enough to merit the expense
- the person concerned survives long enough; if they die midway through the application process, then either their current will takes effect or – if they have no will – then the laws of intestacy will apply.
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.
Why A Lasting Power Of Attorney Cannot Be Used To Change A Will
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:
- Testamentary freedom – individuals have the legal right to determine how their assets and property are distributed after their death. This concept is known as ‘testamentary freedom’. It ensures that a person can make decisions about their estate without interference from others – including attorneys appointed under an LPA. Allowing an attorney to change a will could infringe this principle.
- Preventing abuse of power – this is a significant concern. Allowing attorneys to change wills could open the door to potential abuse or coercion. An attorney could manipulate or pressure the donor into altering their will in a way that benefits the attorney or someone else. The law seeks to protect the testator’s interests and ensure that it is their wishes are followed, rather than those of their attorney.
- Clarity and transparency – when a will is created or amended, there is often a clear paper trail. LPAs, on the other hand, are all about decision-making while the donor is alive; there may not be the same level of documentation and oversight.
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:
- Court of Protection – which helps individuals who have lost mental capacity, appoints deputies to take decisions on their behalf, has the authority to approve statutory wills, safeguards vulnerable adults and helps to resolve disputes.
- Office of the Public Guardian (OPG) – which registers LPAs, supervises court-appointed deputies, maintains registers, investigates concerns, and ensures that decisions made on behalf of individuals who lack capacity are in their best interests (as defined by the Mental Capacity Act 2005).
Further Reading On Wills And Probate
- When Should I Make Or Review A Will? 13 Key Trigger Points. Read more…
- Statutory Wills: How To Change Someone’s Will If They've Lost Mental Capacity. Read more…
- Capital Gains Tax Changes, Inheritance Tax Issues And Probate. Read more…
- Do All Wills Have To Go Through Probate? Read more…
- Will My Partner Automatically Inherit My Estate When I Die? Read more…
- How To Reduce Your Inheritance Tax Bill With Marriage Or A Civil Partnership. Read more…
- Leaving A Legacy To Charity. Read more…
- How To Avoid Paying Too Much In Care Home Fees. Read more…
- How Can A STEP Wills And Probate Solicitor Help Me? Read more…
Get Expert Legal Advice
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.