You may have seen the recent announcement that His Royal Highness Prince Philip’s Will is to be kept secret or ‘sealed’ for the next 90 years. The President of the Family Division in England and Wales, Sir Andrew McFarlane, has ordered that Prince Philip’s Will be sealed, in order to protect the Queen’s dignity and privacy, in light of her constitutional role.
A hearing took place in July 2021, which was originally intended to take place in public. However, the President of the Family Division agreed that matters be heard in private. This was due to the probable media attention that such a public hearing would invite, which would “defeat the purpose of the application.” There were also no public interest reasons to hold the hearing in public, given the judgment would later be published.
The President’s decision follows a tradition where the Wills of Senior Members of the Royal Family are sealed for a significant period of time following their death. Currently, the President of the Family Division is deemed the ‘custodian’ of over 30 sealed envelopes containing the Wills of deceased Senior Royals, including the Queen Mother and Princess Margaret.
Are Wills public documents in Scotland?
This interesting news item might make you stop and think whether your Will might, in fact, become a public document one day. Are Wills public documents in Scotland?
Technically, no. Prior to the testator’s death, they have sole authority to decide who may or may not see their Will and it is very much a private document. Their solicitor is bound by confidentiality to keep the document secured and private. After the testator’s death, it is the Executors who take over the right to make this decision.
However, there are two key ways in which Wills often become a public document after a testator’s death:
1. Registration for preservation in the Books of Council and Session
Often Wills are registered in the Books of Council and Session for preservation. This can be useful for the purposes of safekeeping and is often arranged at the start of an estate being administered, particularly where there are trust provisions within the Will or administration is likely to continue for some time.
Once registered, Registers of Scotland can provide a copy of the registered document, known as an ‘Extract’. Anybody can order an Extract for a nominal cost, and therefore, there are no concerns of misplacing the original deed.
Conversely, should an unregistered Will go astray, it can be very problematic. It is a common misconception that a copy of a Will is sufficient to allow an estate to be administered. Wills are important documents and the original must be obtained in order to progress with estate administration. If an unregistered Will goes missing, and only a copy can be located, it is necessary to go through a costly and burdensome court process to prove the copy is true to the original.
2. Applying for Confirmation with the Sheriff Court
For estates which exceed £36,000 it will most likely be necessary to apply to the Sheriff Court for ‘Confirmation’.
Confirmation is an official document that the court produces which gives authorisation for the Executors to proceed with ingathering the deceased’s estate. Confirmation can then be exhibited to the custodians of the deceased’s assets, such as banks and financial institutions. You may have come across the term ‘Probate’, which is the equivalent concept in England and Wales.
As part of an application for Confirmation, the Executor will submit the principal (or Extract copy) of the Will. Once Confirmation has been granted, the Will becomes a public court document. Any member of the public can then obtain a Will relative to an estate where Confirmation has been granted by contacting the relevant Sheriff Court or HM Commissary Office. If Confirmation was issued prior to 1 January 1987 the relevant information will be held by the National Records of Scotland.
What does this all mean for me?
It is important that you are aware that your Will is likely to become a public document after your death. Unless your estate is small, this will be the only way in which your chosen Executors can administer your estate, ingather assets and distribute them in accordance with your Will.
If there are aspects that you wish to remain private, you can prepare a back letter to your Will, known as a ‘Letter of Wishes’. This is a non-legally binding document which is placed with your Will and offers guidance to your Executors as to your wishes. This does not require to be registered or submitted to Court, if you wish.
The other important message is that you ensure that you are aware of the location of your original signed Will. If you are unsure of its location, you must ensure that you make the relevant enquiries as soon as possible – a copy is insufficient. If it transpires that your original Will is missing and cannot be found, you must prepare a fresh Will as a matter of priority.
If you would like our assistance with this, or with any other matters raised within this article, please do not hesitate to get in touch with our experienced Wills, Estates and Succession Planning Team who would be delighted to assist.