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Are wills public documents?
In most cases a will becomes a public document after probate has been issued, but there are exceptions such as in the case of the late HRH The Prince Philip, Duke of Edinburgh, whose will has been sealed for 90 years.
Unless you are the Queen or King of the United Kingdom, the default position is that after your death and once probate has been issued, your will becomes a public document. A will can be sealed from public inspection if a judge considers that it is “undesirable or otherwise inappropriate” to be made public.
When deciding whether to seal Prince Philip’s will, Sir Andrew McFarlane held that there does not need to be exceptional circumstances and that a person does not need to show that it would be wholly or significantly “undesirable” or “inappropriate” for the will to be made public. As such, the bar for making a will to be sealed, is not an especially high one provided that it is not contrary to the public interest (which is likely to tip the scales).
It was held that Prince Philip’s will should be sealed because: -
- There is a constitutional importance in maintaining the dignity of the monarch whose right to a private life should be preserved.
- Making the will available to the public will not serve to avoid fraud or alert others to the death so that they may make a claim against the estate or the validity of the will.
- The public’s interest in the will was only out of curiosity and the media’s interest solely commercial.
When deciding how long to seal the will for, the court considered how much time would need to elapse before the adverse effect of publishing the will on the private life and dignity of the monarch had substantially diminished. In Prince Philip’s case they erred on the side of caution when deciding on a 90-year period.
The court also decided that there should be a list of wills that had been sealed based on the principle of transparency, but before doing so has allowed time to enable a potential appeal.
Given the above, it is likely that the court will only agree to seal the wills of members of the royal family and celebrities.
What if you aren’t a member of the royal family or a celebrity and want your final wishes to remain private? Where there is a will, there is a way….
Many people will want their final wishes to remain private and to avoid would-be thieves seeing a list of who should receive their precious belongings.
Your privacy can be maintained without your executors/family needing to make an application to the court to have the will sealed by making a discretionary trust will. By utilising this structure, you name one or more charities as the “potential” beneficiaries of your estate, but your trustees have the ability to add beneficiaries after you die. When deciding who to add as a beneficiary and how to benefit them, your trustees consider your letter of wishes, which is not submitted as part of the probate process and therefore remains private. Provided that your trustees take the necessary steps in the two years after your death, this can be a private, flexible and tax efficient way of passing assets to your loved ones and future generations.
If you would like more information about making a will, get in touch with one of our teams in Winchester, Alresford, Sunningdale or London. Alternatively, you can contact us by telephone on 01962 841041 or email firstname.lastname@example.org.