Gary Rycroft Ask a Lawyer

My brother has used his power of attorney to change my mother’s will. How can I fight him?

QMy mother previously told me she had appointed me and my brother as executors of her will. She is alive but becoming senile. According to my brother, Mum has recently appointed him as her sole attorney under a power of attorney. He says this is because he lives close to her and I live 250 miles away. I believe he has also used his role as attorney to change Mum’s will so that he is named as her sole executor. Do I have any grounds for disputing the appointment of my brother as attorney and the change in her executor? – Peter, via email A For many people, issues like this are visceral. They strike at the heart of family relationships and often ignite long-standing tensions between family members.

First, some clarity on one important point. Even if your brother has validly been appointed as your mother’s attorney, he may not use that role to change her will. It is often said that an attorney “stands in the shoes” of the “donor” of the power, which means the actions of the attorney are taken to be the actions of the donor, but there are certain clear legal exceptions to this general rule.

One of those exceptions is that no attorney can use the power given to them to make a will for the donor. A caveat to this is that if a person lacks mental capacity and does not have a valid will, or they have one that for some reason is no longer appropriate, an attorney may ask a court to sanction the making of what is called a “statutory will”.

This is a lengthy process with many safeguards, including notice being served on family members, and there is no suggestion that has happened here. So either you have misunderstood and your brother has not used his role as attorney to change your mother’s will, or she has changed it herself.

The word “senile” implies old age and loss of mental faculties. Neither of those necessarily precludes making a will or a power of attorney, but it is a question of degree and there does come a point when a person’s capacity is lacking to the extent that they may not do either

or both. Accordingly, if your mother has made a new will or a power of attorney you could challenge either or both on grounds of capacity.

Each of those documents would need to be witnessed by an independent person (or two witnesses for the will) and the most common type of power of attorney (a “lasting power of attorney”) requires an independent “certificate provider” to confirm that the donor understands the nature and implications of the document and has agreed to it freely.

You should ask who the will witnesses and power of attorney certificate provider were. If the documents were drawn up by a solicitor, rather than homemade, they will be harder to challenge. I am not saying that just because I am a solicitor, but because the courts have found that to be the case.

To challenge on capacity, you will require evidence and the optimum approach would be for you to somehow arrange for your mother to undergo a capacity assessment at this point. As the events you describe are recent, such an assessment would be almost contemporaneous.

The legal test for capacity to make a will requires, in short, a person to understand that they are making a will, understand the extent of their estate, understand who may expect to inherit and weigh up their claims, and not to have any mental impairment to making a will. Dementia could be such an impairment – but only “could” – and if the other factors could not be proved the challenge would fail.

Another way to challenge a will is to prove “undue influence”, which amounts to “coercion”. This is generally considered harder to prove than lack of capacity, because the primary witness (the person subject to coercion) is usually unavailable to give evidence, whereas a third party, such as a doctor, can give evidence as to capacity. Another potential challenge lies in proving forgery or fraud.

Broadly the same principles apply to challenging a power of attorney, the main routes being capacity, coercion or fraud.

While I may enjoy the intellectual challenge of these types of cases, however, the winners are always lawyers, rarely the family involved.

Here there may be a more pragmatic solution, which is to let your brother be executor and attorney. They are onerous roles and the key is to keep an eye on him. As a beneficiary of your mother’s will, when the time comes you can ask for evidence as to her assets and liabilities.

If you are concerned about financial irregularities in relation to your brother acting as attorney, politely ask him to produce evidence of the transactions he is dealing with and if he refuses say (again politely) that you are going to ask the Office of the Public Guardian’s safeguarding unit to investigate because you fear he is hiding something untoward.

I do not envy you this situation and hope that what I have said will help you navigate it in an informed and

An attorney may ask a court to sanction the making of a ‘statutory will’