Under the Non-Contentious Probate Rules 1987, when a person dies and a grant of probate is required to deal with the administration of their estate, the deceased’s Will becomes a publicly available document. It is not known exactly how this rule came about as it is based on legislation made over a century ago, but the contents of a deceased’s Will may only be sealed in exceptional circumstances, such as where disclosure would be ‘in the opinion of a registrar, undesirable or otherwise inappropriate’.
When a senior member of the Royal Family dies, it is customary for an application to seal their Will from public inspection to be made. Such applications are typically heard in private without any record of the final judgement being released. However, on the death of Prince Philip, an application was made and heard in private but, for the first time, the judgement to seal the Will for 90 years has been published.
The judgement was made by Sir Andrew McFarlane, President of the England and Wales High Court Family Division, who cited the protection of the privacy and dignity of the Queen and her family as the main reasoning behind it. Essentially, it was decided that the potential cost to the Royal Family in releasing the contents outweigh the potential benefit to the public in knowing them.
The contents of any Will can, of course, be very sensitive but this is particularly true for members of the Royal Family who play a unique and very public role in British society. The disclosure of such personal information would likely attract a frenzy of media attention and speculation and potentially encourage harassment of beneficiaries named in the Will. However, any individual who can demonstrate an evidenced personal interest in knowing its contents can make an application to Court to be allowed to inspect the Will.
Given today’s sharp focus on privacy and data protection, there are likely many individuals outside of the Royal Family who would prefer to keep certain contents of their Will private and this can be achievable. A testator may pass their estate to be held by trustees to be distributed in accordance with a letter of wishes. This keeps details of specific items and sums of money out of the body of the Will. A letter of wishes is a document that sits alongside the Will but does not form part of the document and does not, therefore, become available for public inspection. The other benefit of this is that a Letter of Wishes can be easily updated at any time, without the need to re-draft the Will. A disadvantage of this arrangement is that whilst the contents of a letter of wishes provides guidance as to how the testator wishes for their estate to be distributed, they are not legally binding on the trustees. It is therefore crucial that you choose your executors carefully and appoint people who you trust implicitly. Trusts can be complex, so it is important to seek legal advice if you are considering a Will with a trust element.