A Will is a legal document that sets out an individual’s wishes on how they would like their assets to be passed on. The late Duke of Edinburgh’s Will is to be sealed for 90 years and the value of the estate excluded from the grant of probate following a recent judicial decision. This ruling highlights the often-overlooked fact, that a Will, generally becomes a public document after death and anyone can obtain a copy of it.
The ruling on the late Duke of Edinburgh’s Will demonstrates the importance of discussing your intentions with your family when making a Will to avoid later challenges, as the document may be read by anyone with an interest in the estate. It is also emphasising the need to exclude confidential information from the Will.
“This is an issue not just for high profile individuals like the Prince,” explained Wills and Probate expert Jon Creswick of Howell-Jones LLP. “But while an application can be made to keep the contents private, it needs the court to agree that publication would be undesirable, and that’s not likely to happen in most instances.”
Those acting as executors on an estate will submit an application to the court. Following this application, the Court issues the Grant of Probate and this gives the necessary permission for the assets to be distributed according to the wishes of the person who made the Will. This is the point where the Will usually becomes a public document.
In the event a partner or family member feels they have not received what’s known as ‘reasonable provision’ in a Will, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Any claims must be made within six months of the date of the grant of probate and should ideally be made before the estate has been distributed. In the case of a couple who were not married or in a civil partnership, the survivor would have to show they were living together throughout the two years before the death.
Jon Creswick added: “It’s best to avoid nasty surprises and potential claims on the estate by discussing your intentions when you draft your Will. Dealing with a contested Will can be an expensive process and far better to have that conversation now, than to leave it to your family to sort out after you have gone.”
“It’s also important to avoid giving confidential information away in the Will. For example, setting out bank account details could lead to fraud and this sort of information should instead be put into a side letter and placed with the will, or by using one of the other digitally-secure options that have become available, which allow assets to be accessed by those administering the estate without releasing the information further.”
Members of the monarchy had their Wills first sealed in the early 20th century, but as these applications were heard in private, there was no record of the decision. The tradition of sealing royal Wills started in 1910 after the death of Prince Francis of Teck, who left valuable family jewellery to his lover, leaving his sister Queen Mary, to seek a solution that would avoid news of the gift being made public.
In considering the application for Prince Philip’s Will, Sir Andrew McFarlane, president of the High Court’s Family Division, has published his decision so as to provide legal and historical context as a framework for future applications.
Sir Andrew McFarlane’s decision also sets out that previously granted orders sealing the Wills of 30 other senior royals should be in place for 90 years rather than indefinitely. Even though they may remain private after that time, after 90 years the Wills will be un-sealed and inspected in private, so the court can decide.
If you would like any further information or would like to instruct us to assist you in creating or amending a Will, please do not hesitate to contact us and our friendly, knowledgeable team will be more than happy to help.