Why are wills public documents and how do I protect sensitive information?

In England and Wales when a person makes a will they are able to choose who they would like to appoint to be responsible for administering their estate when they die – referred to as ‘Executors’. It is the Executors who will have the authority to collect in the deceased’s assets, pay off their debts, and distribute the estate in accordance with the terms of the Will. The Executors will typically need to apply to the Probate Registry for a Grant of Probate; this document gives the Executors legal permission to deal with the estate.

The original will of the deceased will also be sent to the Probate Registry. In cases where a Grant of Probate has been issued, the default position is that the will becomes a public document. However, this will not apply if public inspection would be ‘undesirable or inappropriate’.

The High Court recently held that the contents of Prince Philip’s will should remain secret* for 90 years. This decision follows a long-standing practice whereby the wills of senior members of the Royal Family are kept out of the public domain. The High Court stressed the public interest in ‘maintaining the dignity’ of the Queen and respecting Her Majesty’s right to privacy.

So, is the principle that wills should be made public still relevant?

This question was raised by the High Court in its judgment. There are certainly advantages to wills being open to public inspection, not least that it helps to ensure that the true wishes of the deceased are carried out. On the other hand, surely there is much to be said for respecting the confidentiality of the person who has died?

Whether right or wrong, the presumption of public inspection of wills remains the current law. With this in mind, one way of maintaining a degree of privacy may be to include a Letter of Wishes with the will. Although not legally binding, a Letter of Wishes can provide useful instructions to the Executors and, importantly, it will not become a public document. A Letter of Wishes may be a suitable way of keeping sensitive information out of the will itself, for example it could contain the reasons why a particular person has been excluded from benefitting under the terms of the will, or give details as to the distribution of certain personal items at the direction of the Executors.

For advice on making a will, and guidance on whether a Letter of Wishes may be appropriate for you, please contact a member of our Private Client Team on 01227 763939.

Background note, an extract from Prince Philip judgment*

‘During the course of over a century, it has become the convention that, following the death of a senior member of the Royal Family, an application to seal their will is made to the President of the Family Division (as head of Probate). Prior to 1971 the applications were made to the President of the Probate, Admiralty and Divorce Division (as predecessor of the Family Division). It appears that such applications have always been heard in private and have invariably been granted. No known record exists of any judgment or statement of reasons that may have been given by my predecessors on previous occasions.’