Who is Entitled to See a Copy of a Will?
Wills are a legal way to ensure that your estate is distributed according with the wishes you put into writing before death. When drafted with the help of the help of an experienced Wills Solicitor, you can ensure all your wishes will be covered.
One of the most important things to remember when creating a Will is that it is a confidential document. This means that no one else has a right to demand sight of your Will while you’re alive.
But what happens after your death? Who is entitled to see a copy of a Will in England and Wales?
Who can see a Will before death
While you’re alive it’s up to you who you show your Will to, if we hold it we’ll never release it anyone without your consent. Aside from letting people know that you have appointed them as executors or guardians, sometimes it’s wise not to reveal the contents of your Will to other people. In other circumstances it can be appropriate to be more open with executors, guardians and beneficiaries. Every situation is different.
Who is entitled to see a Will after death
In the UK, when you die, the original Will is normally released to your executor(s). However, once a grant of probate has been obtained, the Will and grant are generally made public, and anyone can obtain a copy of the Will and grant from the Probate Registry for a minimal charge.
Only in very limited circumstances might the Will and grant not be accessible to the public. Under the Non-Contentious Probate Rules “an original Will or document…..shall not be open to inspection if, in the opinion of a District Judge or Registrar, such inspection would be undesirable or inappropriate”. Exactly what this means is open to interpretation
On 16 September 2021 the High Court confirmed that Prince Philip’s Will would be sealed for 90 years, meaning that it wouldn’t be available for public inspection during that time. Yet when George Michael’s family tried to have his Will sealed after his death in 2016, it was published in 2019 and available for anyone to see.
In theory anyone’s executors could apply for their Will to be sealed and kept from public inspection but whether its publication would be ‘undesirable’ or ‘inappropriate’ would depend entirely on the circumstances and the contents of the Will.
If, like most of us, you’re not royalty there are other ways in which you could prevent your testamentary wishes from being made available to anyone. One way is to include a discretionary trust in a Will, accompanied by a ‘letter of wishes’. This is a letter prepared by the testator and addressed to the trustees, in which the testator sets out how they would like their estate and any trust dealt with. The Will itself will be available for public inspection but the letter of wishes won’t. It’s more important to note that the letter of wishes, unlike the Will, isn’t legally binding so there is always a risk that these wishes won’t be followed, although the trustees would need to have very good reason not to adhere to them.
Secret Trust
Another way is to include a ‘secret trust’ in your Will. This is where the testator includes what appears to be an outright gift in their Will to someone, but that person has agreed with the testator outside of the terms of the Will that they will hold the gift as trustee for an ultimate beneficiary. The trust has arisen outside of the Will and the identity of the beneficiary remains unpublished.
Legendary artist Lucian Freud gave what appeared to be a gift of his residuary estate (worth £42 million) to his two solicitors. However, the solicitors had agreed with Mr Freud before his death that the residuary estate would be held on trust – the terms of the trust and the identity of the ultimate beneficiaries were not available for public inspection.
Request a copy of a Will
Anyone can use the Gov.uk website to request a copy of a probate record (a Will or Grant of Probate) from the government. The cost per document is presently £1.50 for a search by post. A probate file may be requested online or by mail, although only those who have died within the last six months are searched for if a probate has been issued.
If a grant of probate hasn’t been applied for and the Will has not been provided to the Probate Registry, it will not become a public document.
Final Words
When it comes to making a Will, there are a range of ways in which you can keep your affairs private if that’s what you want. However, it’s important to remember that while your Will is sealed and not available for public inspection, the named executors must still administer your estate according to the legal advice of the Will.
Remember when preparing your Will, it might not be disclosed during your lifetime, but it is very likely that it will be available for anyone to see after you have died. If for any reason you would like to limit this availability for public inspection, we would be more than happy to talk this through with you as your solicitor to see how this might be achieved.
