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Is my will private?

Posted: 04/02/2022


This article has been co-authored with Edward Hewitt of 5 Stone Buildings. 

On 16 September 2021, the High Court published its decision that Prince Philip's will would be sealed, and thus kept from public inspection for a period of 90 years, and that the value of the estate would be excluded from the grant of probate. It was also directed by the court that previous orders that sealed the wills of other members of the royal family indefinitely would be varied so that they are only sealed for a period of 90 years from the date on which probate was granted. The President of the Family Division of the High Court, Sir Andrew McFarlane, who heard the case in private proceedings on 28 July 2021, did not see the will or know anything about its contents other than the date of execution and the identity of the executor.

This decision has sparked some controversy, and the Court of Appeal has granted the Guardian permission to appeal against the President’s decision to hold the hearing in private. The Guardian intends to argue that “the case should be reheard in the high court because [the President] failed to properly consider whether reporters should have been permitted to attend the original hearing, or make representations in favour of being allowed to attend. The paper argues that this was a serious interference with the principle of open justice.

The general rule is that, once a grant of probate has been obtained, the will and grant are made public. This rule applies in almost all cases. Electronic copies of wills can be ordered from the Probate Registry's online portal and cost around £1.50 each (at the time of writing). This applies to high-profile individuals and the general public alike; the contents of celebrities' wills are often reported in the media after their death. Following George Michael's death in 2016, the singer's family reportedly attempted to have a copy of his will sealed so that it was not available for public inspection. However, the will was eventually published in 2019.

Given that even high-profile individuals' wills are published after death, it is understandable that some view the decision of the High Court in September as being 'one rule for royalty, and one for everyone else'. However, this is not necessarily the case.

Rule 58 of the Non-Contentious Probate Rules provides that “an original will or document … shall not be open to inspection if, in the opinion of a District Judge or Registrar, such inspection would be undesirable or inappropriate.” This rule does not apply only to royalty; it applies to every person in England and Wales. Indeed, the High Court held in the case of Prince Philip’s will that the hurdle to meet the standard of 'undesirable' or 'inappropriate' “is not an especially high one”.

This means that, in theory, anyone’s personal representative could apply for all or part of a will not to be open to inspection. Indeed, a will could include a direction to personal representatives to make an application of this nature. In practice, the success of the application will depend upon the specific circumstances, including in particular the content of the will and the reasons why its publication is said to be ‘undesirable’ and/or ‘inappropriate’. The judge made it clear that the recent judgment is “firmly confined to the wills of senior members of the Royal Family”. So it remains to be seen how the court would approach an application brought by anyone else. In this regard, it is interesting to note that the court commented that “the question whether [the rule that wills should ordinarily be exposed to public inspection] is still justified or acceptable to the public in the 21st century may be an open one”.

Methods to maintain confidentiality

There are other ways in which one’s testamentary provisions can be withheld from public view. A common method is to include a discretionary trust in a will, and accompany it with a 'letter of wishes' – this is a letter addressed to the trustees setting out how the testator would like their estate dealt with. Although the will itself will ordinarily be open to public inspection, the letter of wishes will not. The downside is that, unlike wills, letters of wishes are not strictly binding or enforceable (although trustees should have a good reason to depart from them), so there is a risk that those wishes may not be followed.

Another method of keeping confidential certain testamentary provisions is to insert a ‘secret trust’ into a will. This is where a testator leaves a gift in their will to a donee that might otherwise look like an absolute gift, but the testator has formed an agreement outside of the will (either before or after it was drafted) with the donee that they are to hold the gift as trustee on certain terms for an ultimate beneficiary or beneficiaries who remain unnamed in the will itself. The terms of the trust, and the identity of the beneficiary, can be kept out of the will and thus avoid public inspection, because the trust is considered to have arisen outside of the will.

Adopting this method, artist Lucian Freud by his will gave his £42 million residuary estate to his two solicitors. His will was published in the usual way. On the face of the will, the gift looked like an absolute gift to the two solicitors. However, the two solicitors acknowledged that the residuary estate would be received and held by them on the terms of a secret trust as agreed with Mr Freud before his death. The terms of the secret trust, including the identity of the ultimate beneficiaries of the residuary estate, have therefore remained unpublished.

Finally, the court has power to omit from probate words in a will that are “scandalous and defamatory and which do not affect any testamentary disposition or appointment contained in the will”. For example, in the 1914 case of Re Robert White, the testator’s explanation as to why he had disinherited his wife and left all of his estate to his brother was omitted from probate. The report indicates that the explanation, “while reflecting in no way on her chastity, [was] said to be scandalous and defamatory and would be painful to her and derogatory to her character if included in the probate”.  

As well as the letter of wishes, there are numerous other pieces of information that are not publicly available. For example, the previous wills of the testator are not publicly available after death. In addition, details about the assets of a testator, as well as their documentation, will only be available to the executors, who effectively step into the deceased's shoes for the purpose of dealing with the deceased person’s estate (although the values of the gross estate and the net estate usually appear on the grant of probate, and thus become publicly available).

Penningtons Manches Cooper is experienced in acting for individuals on preparing wills and letters of wishes, as well as contentious matters relating to trusts and estate. The firm has many experienced solicitors who can advise those looking to keep their testamentary wishes as confidential as possible. 

 

5 Stone Buildings is a leading set of private client chambers with barristers providing expert legal services in the UK and abroad in trusts, estates, family provision, art and cultural property, partnership, taxation, pensions and the affairs of the mentally incapacitated. They have particular expertise in advising and representing clients in connection with the law of wills, probate, and administration of estates.


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