Do I have the right to demand from solicitor original copy of Will?

[Lucy4470]

Hi folks. This is my 1st post so I’d be most grateful for your help. I hope I’ve done it right!
My mother has made a new Will in which she has made several changes to one she made about 10 years ago. Does she have a right to ask her old solicitor to provide the original or copy of the last one? Can they refuse? Can she ask for it to be deposed of and if so what legal footing does she have? Thank you.

[Manxman]

Is there any reason that she needs the old one? It will have been automatically revoked when she made the new one. All she really needs to do is to let interested parties (eg executors, beneficiaries, family etc) know who holds the new one or where it is stored. She doesn't need to destroy the old one unless she's a belt and braces person.

(Is the old solicitor charging for storing the old will? Might be as well to confirm to them that it's been superseded by a later will.)

EDIT: Of course she has a right to the will - it's her will. (Only difficulty might be if there are any outstanding fees, but unlikely after ten years). But she doesn't need to have the old will - it's automatically revoked by the new one. Your mother's new solicitor should have been able to explain all this to her(?). Hope it's not a DIY will or will writing firm?

[Lucy4470]

Hi Manxman. Thanks for your input, appreciated. You might guess, yes, there’s more to it & I was trying to keep it simple. Her brother was LPA, she made a Will. He was controlling her & is being investigated now for many unauthorised withdrawals from her bank account. So the bottom line is, does she (as it is her old Will) have a right to see the old Will? The brother is unaware she’s made a new one. In simple terms, with or without the story, has she got a right to see a copy of the Will she wrote or demand it be sent to her? Thank you.

[Lucy4470]

[QUOTE=Lucy4470;n1525527]Hi folks. This is my 1st post so I’d be most grateful for your help. I hope I’ve done it right!
My mother has made a new Will in which she has made several changes to one she made about 10 years ago. Does she have a right to ask her old solicitor to provide the original or copy of the last one? Can they refuse? Can she ask for it to be deposed of and if so what legal footing does she have? Thank you.

[des8]

As per post 2 Manxman "Of course she has a right to the will - it's her will. (Only difficulty might be if there are any outstanding fees,"

It is her will and the solicitor should follow her instructions to either release it or destroy it, if that is what she wishes.

Just intrigued as to why

[Lucy4470]

As per post 2 Manxman "Of course she has a right to the will - it's her will. (Only difficulty might be if there are any outstanding fees,"

It is her will and the solicitor should follow her instructions to either release it or destroy it, if that is what she wishes.

Just intrigued as to why

She wants to show that she was put under duress.

[des8]

If she made her first will under undue influence, it has now been cancelled..
If she made her current will under undue influence she should revoke it by writing a new will

If she is concerned that her brother misused the LPA, she should report it to the Office of Public Guardian, if not already done so.

[Manxman]

She wants to show that she was put under duress.

??? I don't see how she seeing her old will can provide any evidence of duress? It'll only show the bequests in her old will - not why she made them or the circumstances surrounding them. In any event, as DES8 says, the old will has been revoked by the new one, and if the new one was made under duress, then she needs to revoke it with another one.

One thing does confuse and concern me though. There seems to be some suggestion that your uncle has misused a power of attorney. First, you talk about this PoA in connection with the will, but you do of course realise PoAs have nothing* to do with wills? Second, any PoA that your uncle has would only become active if your mother lost capacity. Has she? If "Yes", how did she execute a new will? If "No", how** has your uncle used the PoA?

* I'm just wondering if your mother (and you?) are confusing the PoA with being an executor under the will. I don't think you are, but just want to be sure.

** If your mother has lost capacity and the PoA is active, then any suspected abuse should be reported to the Office of Public Guardian (as per DES8), but if your mother has not lost capacity it sounds more like a simple case of fraud or theft for the police?

You say it's being investigated. By whom? Have you sought legal advice?

EDIT: Of course she's entitled to see her will - it belongs to her! Are you saying it's a confusing situation because she has lost capacity? I don't understand why you think she would not be allowed, or would need someone's permission, to see it?

[des8]

any PoA that your uncle has would only become active if your mother lost capacity.

True re health and welfare decisions, but for property and financial affairs the LPA may allow the attorney to make decisions whilst the donor still has mental capacity

[Manxman]

Ah... thanks

[Ed999]

This thread seems to be confusing different, and quite unrelated, legal issues.

The Will has no bearing on any of the issues discussed here, since it has no effect whatever. So long as the testator is still alive, her Will has no effect, and any one named in it has no power over her property or affairs.

Where a new Will is signed and witnessed, any prior Will is automatically revoked, by operation of law, whether or not the new Will contains an express revocation clause.

In a case of duress, it is common for the person exercising the undue influence over the testator to arrange to have himself appointed as an executor or trustee in the Will. If you obtain the original Will, even if it contains such an appointment, that is NOT evidence that undue influence was exercised over the testator to obtain that appointment. Additional evidence of duress would be needed, which would not be easy to obtain if that Will was made by a solicitor -- if effect, you would be saying that it was the solicitor who was exercising the undue influence.

The only obvious way I can see any relevance in the original Will is if it was written by a non-solicitor, for example a home-made Will written by the person allegedly exercising the duress.

As she made the original Will ten years ago, the question of whether she has mental capacity today is irrelevent. The only issue is whether, ten years ago, she had capacity to make it.


The Lasting Power of Attorney (LPA) is NOT ineffective. It gives genuine legal rights to the person appointed as the attorney, during the lifetime of the person making it, and ceases to be effective only on her death, if the power appoints the attorney to manage her property and financial matters.

It is designed to last, under certain conditions, even if she becomes mentally incapable in her lifetime -- whereas an ordinary power of attorney is revoked by the mental incapacity of the maker. There are many rules about what the attorney must do to preserve the validity of the power, in the event of having reason to believe that the donor is becoming incapable of managing her own affairs; but the power has legal validity both before and after that event if the correct steps are taken.

There is a second type of Lasting power: one which is limited to issues of health and welfare. This second type of power only has effect AFTER the maker becomes mentally incapable, and it doesn't cover financial matters. No one seeking to exercise undue influence would be interested in this type of power, because it doesn't give them control of the maker's money or assets.

A power, if made years ago, can't be an LPA, because they were only invented in 2005.