When planning for the future, many people create two key legal documents: a will, which sets out how their estate should be distributed after their death, and a lasting power of attorney (LPA), which authorises someone they trust to make decisions on their behalf if they lose mental capacity during their lifetime. A question that often arises is whether someone appointed under a power of attorney can change or update the donor's will. This is an important issue because it touches not only on the donor's autonomy but also on how their estate will be dealt with after death, including the probate process. The short answer is no - an attorney cannot simply change someone's will. However, in certain circumstances, they can apply to the Court of Protection for what is known as a “statutory will”. This is a highly regulated process, and one that requires careful consideration of the donor's best interests.
A will is a document that only takes effect on death. It governs what happens to a person's property, money, and possessions after they die. Probate, the legal process of proving a will and administering the estate, ensures that the deceased's wishes are carried out correctly.
A lasting power of attorney, on the other hand, is a lifetime document. It allows a donor to appoint one or more people (attorneys) to make decisions on their behalf if they lose capacity. There are two types: one covering health and welfare, and one covering property and financial affairs.
Although attorneys under an LPA for property and financial affairs can make wide-ranging decisions about the donor's money and assets, their powers stop short of altering or creating a will. This is because a will represents the donor's personal testamentary wishes, not their day-to-day financial management.
The law is clear: attorneys appointed under a lasting power of attorney do not have the authority to change an existing will or to create a new one for the donor. The reason is simple. A will is a highly personal document, reflecting not only financial decisions but also relationships, values, and emotions. Only the person making the will - the testator - has the right to decide how their estate should be distributed.
Allowing attorneys to change wills unilaterally would create a serious risk of abuse. Attorneys could alter wills to benefit themselves or exclude other family members, undermining the testator's autonomy and leading to disputes during probate. For this reason, the law requires any change to be authorised by the Court of Protection, which provides independent oversight.
Where a person has lost mental capacity and cannot make or amend a will themselves, it may be possible for a statutory will to be made on their behalf. This is an order of the Court of Protection creating or changing a will to reflect what would be in the donor's best interests.
Attorneys, deputies, family members, or other interested parties can apply to the Court of Protection for a statutory will. The court will then consider all the circumstances, including the donor's previous wishes, their current financial situation, the needs of family members, and any moral obligations. The overriding principle is that the statutory will must serve the donor's best interests, not the convenience or desires of others.
There are several situations in which a statutory will may be appropriate:
- The existing will is out of date - For example, if the donor made their will many years ago, and key beneficiaries have since died.
- There is no valid will - If the donor never made a will and has lost capacity, intestacy rules will apply. These may not reflect what the donor would have wanted.
- The donor's circumstances have changed - For example, if they have acquired significant new assets, such as compensation from a personal injury claim or the sale of a property.
- Tax planning considerations - A statutory will may reduce inheritance tax liabilities, which ultimately benefits the donor's estate and beneficiaries.
- Moral obligations - The court may consider providing for dependants or carers who would otherwise be left out under an outdated will or intestacy.
Each application is assessed on its own facts, and the Court of Protection will only approve a statutory will where it is satisfied that it is genuinely in the donor's best interests.
Although statutory wills are created during the donor's lifetime, their significance is only felt after death, when the estate is administered through probate. Executors must prove the statutory will just as they would any other will, and it becomes the definitive record of the donor's wishes at the time of their death.
If no statutory will has been made and the donor dies with an outdated or invalid will, probate can become more complex. Executors may face disputes between beneficiaries, particularly if some believe a statutory will should have been applied for. This underlines the importance of addressing the issue promptly during the donor's lifetime rather than leaving it to cause problems later.
Applications for statutory wills are often contested. Family members who stand to gain or lose depending on the outcome may challenge whether a statutory will is truly in the donor's best interests. For example, children from a first marriage may object to a statutory will that benefits a second spouse, or vice versa.
Disputes of this kind fall within the field of contentious probate. Although the donor is still alive, the dispute is effectively about how their estate will be divided after death. Such cases can be highly emotional, expensive, and time-consuming. For this reason, anyone considering an application for a statutory will should seek legal advice from solicitors experienced in both Court of Protection work and probate disputes.
Unlike rectification of a will, statutory will applications do not have a fixed statutory time limit. However, they should be made as soon as it becomes clear that the donor lacks the capacity to make or update their will. Delay can prejudice the estate and lead to complications during probate.
Applicants must prepare a detailed case, including medical evidence confirming the donor's lack of capacity, financial information about the estate, and details of family members or potential beneficiaries. The court may appoint the Official Solicitor to act on behalf of the donor to ensure their interests are fully protected.
From a probate perspective, statutory wills play a vital role in protecting executors and beneficiaries. Executors must administer the estate in accordance with the will in force at the time of death. If the will is outdated or fails to reflect the donor's best interests, executors may find themselves facing disputes or even personal claims against them.
By securing a statutory will during the donor's lifetime, executors and beneficiaries gain certainty. The probate process runs more smoothly because the will is up to date, valid, and court-approved. This reduces the risk of contentious litigation after death.
Attorneys under a lasting power of attorney cannot change or create a will themselves. However, they can apply to the Court of Protection for a statutory will if the donor has lost capacity and the circumstances justify it. Statutory wills ensure that the donor's best interests are protected and that their estate can be distributed fairly and efficiently after death.
Because statutory will applications often overlap with probate considerations, it is essential to obtain expert legal advice. Executors, beneficiaries, and attorneys all need clarity and reassurance that the estate will be administered lawfully and in line with the donor's true interests.
At Premier Solicitors, we understand the complexities that arise when wills, powers of attorney, and probate intersect. Our experienced team can guide attorneys, executors, and families through the statutory will process, ensuring that applications to the Court of Protection are robust, well-prepared, and focused on the donor's best interests.
We also advise on probate disputes involving wills and statutory wills, helping clients resolve conflicts and secure fair outcomes. With expertise in both lifetime planning and estate administration, we are uniquely placed to support clients in this sensitive area.
If you are an attorney, executor, or family member concerned about the validity of a will or the need for a statutory will, contact Premier Solicitors today. We provide clear, practical advice to give you peace of mind and to ensure that your loved one's estate is managed properly, both now and in the future.
For more information, please call us on 01234 358 080 or visit our contact page to send an enquiry form.
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