The public interest in wills

Olivia Miller
Picture by Unsplash

It was recently revealed that a vast amount of wealth is distributed by senior members of the royal family under wills that have been sealed from public inspection.

Nick Piška, an expert in equity and trusts law at Kent Law School, comments on the laws of public access to wills and why the case of Prince Philip’s will confidentiality has come with implications and shines a greater light on wealth inequality. He said:

‘This may not be surprising to the general public, but what is surprising is that the legal process and grounds for the sealing of royal wills has until recently been cloaked in secrecy.

‘Under the Senior Courts Act 1981 wills are normally open to inspection by the public. However public access to wills is subject to a rule that wills shall not be open to inspection where the court believes that it would be ‘undesirable or otherwise inappropriate’. This little used rule has been used to seal the wills of senior members of the royal family for over a century in accordance with a convention that was developed privately between the royals, their lawyers, the Attorney-General and the judiciary. The effect of a High Court decision last year concerning the sealing of Prince Philip’s will could have an impact on public access to wills beyond the royal family and provide a further means for the wealthy to hide their assets.

‘The High Court decision confirmed and clarified the convention that the wills of senior members of the royal family are sealed, initially for 90 years. It did so on the basis of two arguments: to protect the dignity of the sovereign, and to protect the privacy of the Her Majesty.

‘There are a number of problems with the High Court’s reasoning. The argument concerning the dignity of sovereignty is based on an outdated a conception of public office. Dignity in public office in contemporary society requires more transparency, not less. Hence lists and registers of members’ interests and other common transparency requirements for decision-makers and others in public office. While imperfect, these provide some public scrutiny and accountability and reduce the risk of conflicts of interest and nepotism.

‘On the face of it the privacy argument is more convincing: public figures are subject to a great deal of scrutiny, and sealing of wills protects against sensationalism and (beyond the royal family) against the potential for harassment and even abduction. Again we might counter that there is a greater need for transparency with respect to public figures.

‘What might be most surprising to the public is not that there is an exception to the normal rule for the royal family, but the normal rule itself. Why, it might be asked, are any wills open to inspection by the public? Are wills not inherently private, concerned as they are with family finances and other family matters? What is the public’s right or interest in the will of any fellow citizen? And herein lies the most worrying element of the privacy argument: while it seems a simple argument available to everyone (that wills are inherently private), the reality is that it is an exception only likely to benefit those wealthy enough to take advantage of it.

‘The origin and rationale of public access to wills is unclear, although we know that it has been a statutory right since 1857. Various rationales have been given, including informing beneficiaries of their rights and possible creditors of the estate. Previously one would have had to inspect the district probate registries for copies of wills. Now the public can search for and obtain almost any will that has been granted probate through a Government website. But just as the means of public access has changed, so too the rationale for public access. With the development of family provision legislation, those who have a claim to reasonable financial provision under a will now also have an interest in knowing the value and content of certain people’s wills. Historians, archivists, genealogists and social scientists also have an interest in information concerning the value and distribution of estates.

‘A limited class of applicants with a specific interest is different from a general right of access though. Can a general right of access be justified? In the High Court Sir Andrew McFarlane seemed to cast doubt on a general right of inspection in the age of the ‘right to privacy’, and considered that the exception where it would be ‘undesirable or otherwise inappropriate’ to allow inspection to be easily met.

‘There are other values than privacy at stake in the public inspection of wills. For example, the Supreme Court of Canada recently reaffirmed the primacy of open justice in court proceedings, including non-contentious administrative proceedings such as probate. In that case the executors of the wills of a wealthy couple who had been murdered sought sealing orders of the probate files on the basis of protecting the dignity of the family and their privacy. They had raised particular concerns about the safety of family members should the proceedings be public. The court refused the request, and held that for the presumption of open justice to be rebutted something more than the dissemination of possibly embarrassing private information in court proceedings is needed.

‘In terms of making the case for a general public interest in wills, an important factor is being able to understand and have an open debate about wealth inequality. Perhaps the most concerning aspect of the sealing of Prince Philip’s will is that the convention has been extended to not even disclosing the value of the estate. Such information is crucial in understanding wealth inequality, and knowing the contents of wills further helps us explore patterns of distribution of wealth.

‘A related point concerns tax justice, financial accountability and the need to counter money-laundering and other forms of financial fraud. It would be strange for wills, that have been matters of public record for over 150 years, to become increasingly private just as in other respects details of corporate control and beneficial ownership of companies and trusts, previously private, are increasingly subject to public registration. The High Court’s decision, if it were to stand, in reality provides a gateway for the wealthy to have their wills sealed and in doing so further seal themselves from public scrutiny.

‘Despite the intuitive strength of the privacy argument in the modern age, it must be remembered that the legal starting point is the public right of inspection of wills and the principle of open justice, both of which are well established. The royal family should not be treated as exceptional, but nor should a general exception to the public inspection of wills based on privacy be developed. The High Court’s decision runs the risk of turning the exception (sealing) into the norm; we should not allow an exception that will mainly benefit the wealthy – the very people who, if anything, ought to be more accountable.

‘Last week the Court of Appeal heard an appeal concerning the High Court’s decision to hold the hearing in private, largely on the same grounds as it gave for sealing the will. It is hoped the Court of Appeal will also get the opportunity to address the wrong-turn taken in the High Court on the substantive issue of the scope of the exception to the normal rule.’

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