A Royal Secret - Should Wills be open to public inspection?

A recent decision by the President of the Family Division of the High Court, Sir Andrew McFarlane, has stated that the Will of the late Prince Philip, Duke of Edinburgh is to be kept sealed for a minimum of 90 years. 

The decision to keep the will sealed, and therefore keeping the contents unknown from the general public, is a departure from the general position which states that a Will which requires a Grant of Probate should be available for public inspection. 

The rationale behind the decision in relation to the Will of Prince Philip was on the grounds of protecting the private life of Her Majesty the Queen and other members of the Royal Family. The Duke of Edinburgh’s Will is by no means the only Will made by a member of the Royal Family which is kept secret. In his Judgment, Sir Andrew McFarlane stated that he is the custodian of a safe in which more than thirty sealed Wills are kept. He goes on to state that these Wills are the sealed wills of deceased Royals, going back as far as the Will of Prince Francis of Teck, who passed away in 1910. More recently, sealed Wills of Her late Majesty Queen Elizabeth, the Queen Mother, and of Her late Royal Highness The Princess Margaret, Countess of Snowdon, were added to the safe. 

With there being over thirty Wills from a period spanning over a century, it appears an established principle, albeit not one which is formally recorded, that the Wills of deceased Royals will, subject to application, be kept secret and will not be available to inspection by the public. 

Why then, is it the case that the Will of an average citizen should be allowed to be viewed by any person who may feel so inclined to request a copy? 

The first distinction to note, is that only the Wills which are submitted to the Courts as a part of an application for a Grant of Probate are then available as public records. A Grant of Probate will be required to deal with any land held in an estate along with other high value assets. 

In his Judgment, Sir Andrew McFarlane lists five factors which are key in forming the principle of why a Will should be a public record: –

“a) Publicity should ensure that effect is given to the wishes of the testator;

b) The task of notifying and tracing legatees may be facilitated if the will is made public;

c) Publication of a will might serve a general interest in notifying the deceased’s creditors of the death;

d) In circumstances where a testator’s true, final will has been lost or supressed, others may come forward to prove a document in respect of which probate should be granted, those individuals having been alerted by the publication of a purported true will;

e) Publication may give notice to those who might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975.”

It was argued that in the case of the Will of the late Prince Philip, these factors were unlikely to be of any significant concern. 

It is also acknowledged that there is not a particular source which can be cited as the grounds on which the principle of Wills being a public record is based although it can be traced back to the mid-1800s. These principles have been clarified through subsequent legislation (currently the Senior Courts Act 1981 and the Non-Contentious Probate Rules 1987) and will apply to all Wills for which Probate is granted. The default position, which allows public inspection, can be departed from where an application is made to the Courts and where the Courts decide that allowing public inspection of a Will would be “undesirable or inappropriate” (NCPR rule 58) they can stop the Will from being made a public record, as in the case of the late Duke of Edinburgh’s Will. 

A point of interest to note which is briefly touched upon in the Judgement from Sir Andrew McFarlane is that a Sovereign’s Will does not need to be proved by a Grant of Probate. As a result of this principle, which can be traced to caselaw from 1822 and 1862 respectively (both regarding the estate of King George III), an application to prevent the Will of the Queen being made public shall not be required. 

Sir Andrew McFarlane has also observed the lack of records in relation to the previous applications for sealing of the Wills of royalty. The position for the thirty or so Wills which are under his custody prior to his present Judgment is that they would have been sealed indefinitely, in absence of any contrary provision. 

Whilst it was agreed that the Will of Prince Philip could be sealed Sir Andrew McFarlane invited both parties to make submissions on whether a time limit should be introduced for how long the Wills should be sealed. Following submissions, the Judgment has held that the sealed Will of a deceased Royal should be sealed for a minimum of 90 years. Once the 90 years have passed, a private process – the specifics of which are yet to be determined – would be carried out to open the Will and consider applications for publication or for it to be sealed for a further period. 

Not only was this time-limited decided upon in relation to the Duke of Edinburgh’s Will but it will be applied retrospectively to the sealed Wills of which the President of the Family Division of the High Court is custodian. The rationale stated was that, after 90 years, the media interest in a deceased Royal would not have the same degree of intrusion into the surviving relatives’ private lives however the historical and biographical interest into the royal family will remain. 

Subject to allowing time for any appeal to be made, Sir Andrew McFarlane also intends to publish as an appendix to his judgment a list of the sealed Wills which are held in his custody.  

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Fam/2021/77.html 

The contents of this article do not constitute legal advice and are provided for general information purposes only.