MAKING A WILL: SHOULD A WILL BE MADE PUBLIC AFTER I DIE?

After reading that Prince Phillip’s Will is to be kept secret for 90 years, I suspect people have wondered why. The strict legal answer is that under the Non-Contentious Probate Rules all Wills must be open to inspection after probate is granted. There are one or two exceptions, the Royal Family have been given the benefit of that exemption.

What are the rules about publication of Wills?

The rules about the publication of Wills actually goes back to the Victorian era and many will ask why in this time of strict privacy law we should continue to make peoples’ Wills public. There are undoubtedly many good reasons arguing that Wills should be kept private, and there is little doubt that many celebrities would love to ensure that their Wills were kept out of the public eye.

Legal reasons for making Wills Public

On the other side, there are some very good legal reasons that Wills should be public. The charity sector is heavily reliant upon the receipt of legacies. If Wills were not made public would-be charities always be aware of their legacies? Similarly, what happens if a beneficiary under a Will is not told of his or her inheritance and has no way of seeing the Will? It is a very regular occurrence that we have clients who are anxious to hide the contents of a Will, or to simply ignore or “overlook” sections. I have frequently had requests to try and see if there is a way of not paying a charity or ignoring a bequest to some distant unknown or despised relative. If Wills were not made public these people might struggle to establish their entitlement under a Will. In practical terms it might be that some sort of limited right to see a Will could be established under which only those with a vested interest be entitled to see a Will. I would not like to be the person who has to police such a rule.

A secondary point about the publication of Wills is that as part of this the size of somebody’s estate is also made public. There seems to be much less reason to justify this and I suspect that most of the time it does little more than feed the curiosity of observers who have no particular need or right to know this information. On this subject there must be a stronger argument for a greater degree of privacy.

It is of course partially because of the rules about the publication of Wills that we always advice caution about including notes of reasons or wishes in the body of a Will, washing your dirty linen in public is rarely a good idea!

Is there a legal right to see a Will after Probate?

Having stated that there is a legal right to see a Will after Probate, it is perhaps worthwhile pointing out that if you are seriously interested in protecting your privacy there are ways in which it is possible to hide, or at least disguise many of your intentions. However, doing this is not entirely straightforward and usually involves use of trusts, meaning that it is not a cost-free option. If you are interested in such a course of action, we at Herrington Carmichael Private Wealth Team would be happy to advise on possible routes to achieved this.

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