Clients ask me from time to time “Can Power of Attorney change a Will?” It’s an interesting question, and you would think the answer should be “Definitely not.” In fact, believe it or not, there are circumstances in which an attorney can apply to court to change a person’s Will. The person in question must be over age 18, have lost mental capacity to make a Will themselves, and be domiciled in England & Wales (i.e. they have their permanent home here.)
What is Testamentary Capacity?
Under normal circumstances, in order to change your Will, you must have ‘testamentary capacity’. The test for this is set out in the classic case of Banks v. Goodfellow (1870), and it has been confirmed by recent caselaw. In short, the test is that the testator must (i) know what a Will is, (ii) know who would reasonably have a claim on their estate and (iii) know what their estate includes. If the person isn’t able to recall these key facts then they do not have testamentary capacity, and they cannot change their Will themselves.
In the case of a client who is still alive but has sadly lost testamentary capacity, leaving either a Will which is less than ideal, or no Will at all, their attorneys can apply to the Court of Protection to make a statutory Will on their behalf, under the Mental Capacity Act 2005.
A statutory Will might be made for tax planning reasons, or because the client’s circumstances have changed since their existing Will was written, or perhaps because they never got around to making a Will in the first place, and the intestacy provisions are not suitable for their family.
A statutory Will ratified by the Court of Protection will have the same legal effect as if the person had made it themselves.
What information will the court need, and how does it all work?
The application process requires submitting a very detailed application to court. This would include copies of any existing Will or codicils, a copy of the proposed statutory Will, copies of the person’s Lasting Powers of Attorney, details of the person’s family and their assets, and medical evidence confirming that they lack capacity to change their Will themselves.
Applying to make a statutory Will can prove expensive, and typically the costs are paid from the estate of the person in question. Anyone whose interests will be adversely affected by the proposed changes will be notified, and they will have the opportunity to lodge objections for the court to consider. The court’s eventual decision following a hearing will be based entirely on what it believes would be in the person’s best interests, taking into account any written statements of their past wishes and feelings, and their beliefs and values.
What if the question “Can power of attorney change a Will” has been met with a firm “no”?
All may not be lost if your application for a statutory Will is unsuccessful. There are still two other ways in which someone’s Will can effectively be changed retrospectively, after death. This would not be done by the attorneys, as a power of attorney ceases to have effect on death, but by the executors and/or beneficiaries themselves.
Enter into a Deed of Variation
If all of the beneficiaries who would be giving something up can agree (admittedly, that’s not always going to happen), the executors and beneficiaries of the Will can enter into a deed of variation after the person has died, formally varying the terms of the Will. It will then be read for tax purposes as if the terms of the variation had been contained in the original Will, which is particularly helpful if the variation is being carried out for inheritance tax planning purposes. A deed of variation must be made within 2 years of the date of death.
Make an Inheritance Act Claim
Alternatively, the Inheritance (Provisions for Family and Dependants) Act 1975 allows a spouse or former spouse, civil partner, cohabitee, child or other financial dependant of the deceased to challenge a Will. In order for a claim to succeed, the person would need to argue that reasonable financial provision had not been made for them from the deceased person’s estate, in all of the circumstances.