The public nature of wills has recently been hotly contested in the United Kingdom, where the practice of making wills of ordinary folk public, versus sealing royal wills, has been in focus.
Following the death of Prince Philip, Duke of Edinburgh last year, the executor of his estate applied for an order that his will be sealed and that no copy of it be made for the record or kept on the court file.
The executor also sought a direction to exclude the value of Prince Philip's estate from the grant of probate.
After a private hearing, the order was granted and judgment was made in September by the UK High Court of Justice Family Division in the case “Re: The Will of HRH Prince Philip”.
The court accepted that while there might be public curiosity about a member of the Royal Family's private arrangements, there was no true public interest in knowing this private information, while media interest was commercial. The court ruled that the royal will should be kept secret for 90 years.
For more than a century, the practice of sealing wills of the Royal Family applied to senior members, including the consort of the sovereign or former sovereign, child of a sovereign or former sovereign and a member of the Royal Family who at the time of death was first or second in line of succession to the throne or the child of such a person.
The will of Prince Francis of Teek, youngest brother of Queen Mary who died in 1910, was the first to be sealed in this manner. Since then, the wills of 30 deceased senior royals have been similarly sealed and kept in a locked safe in the UK High Court.
In the UK, a sovereign's will does not need to be proved by a grant of probate, but this does not extend to other members of the Royal Family whose estates are subject to ordinary probate rules.
Probate confirms the right of an executor or administrator to deal with a deceased's estate. Once a will is submitted to court for probate, it will be open to public inspection unless a judge finds such inspection to be “undesirable or inappropriate”.
In Bermuda, like the UK, wills are public in order to ensure that the estate is properly administered, to prevent fraud and to alert all those who may expect to receive some benefit, or who may have a claim against the estate.
While the law allows freedom of testamentary disposition, it also provides that certain categories of persons can submit claims if they are not adequately provided for after death. Being able to search for and view probated wills facilitates these claims.
The Registrar of the Supreme Court maintains a register of all grants made in the registry. This register may be inspected on payment of a fee.
A grant of probate, or grant of letters of administration with the will annexed, includes the will and any documents filed as attachments, which can be viewed in this manner.
It is important to remember this when drafting your will and making an estate plan.
Care should be taken not to include passwords, malicious or hateful sentiments or other sensitive information that you wish to keep private. Do not leave incriminating secrets about family members or friends in your will.
A common way to ensure that personal information is not included in a probated will is to use a trust in your will, supplemented with a confidential “letter of wishes” to your trustees noting how to distribute your assets. Letters of wishes are not subject to probate.
Remember that not all wills are probated on death; much will depend on the nature of the assets contained in your estate and how they are owned.
It may be possible to avoid probate if assets are held jointly and pass automatically by rights of survivorship.
Also where the assets held in one's sole name are limited in value (perhaps other assets having been gifted during one's lifetime, or held in a trust), or in a category not requiring probate.
Wills in those instances remain as private documents only disclosable to the executors and beneficiaries named therein.
In January, the UK Court of Appeal granted The Guardian newspaper permission to challenge the court's decision to hear in private the application to seal Prince Philip's will. The Guardian argued the decision represented a “serious interference with the principle of open justice”.
The debate about public disclosure of wills and other documents revolves around rights to privacy and interests of transparency. Can a balance be met between the two? It will be interesting to follow this appeal.
The judgment in the Prince's case serves as a timely reminder that not all probated wills are sealed and made private.
Unlike wills made by Royals, wills made by ordinary members of the public are likely to be made public.
One should therefore think very carefully about what is contained in a will and should seek professional guidance when crafting an estate plan.
First published in The Royal Gazette, Legally Speaking, February 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.