Kirsti Harvey and Sophie Stone, in our Wills, Probate, Tax & Trusts team, look at why the contents of the late Duke of Edinburgh's Will are to remain private for almost a century.
Under S.124 Senior Court Act 1984, there is a general principle that, following an application for a Grant of Probate, the Deceased’s Will becomes a public document. Anyone can then apply to the Probate Registry to obtain a copy of the Will. However, this general rule can be disapplied, under rule 58 of Non-contentious Probate Rules 1987, if such an inspection of the Will would be “undesirable or inappropriate”.
It has been long established that the Sovereign’s Will shall not become a public document. However, this authority does not apply automatically to the rest of the Royal family. In order to keep a Will sealed from public inspection an application must be made by the Executors to the High Court, as was the case with the Will of the Queen Mother and Princess Margaret. The sealed Wills are, as per tradition, held in the safe of the President of the Family Division as Head of Probate. The application bought by Prince Philip’s Executors was heard by the President of the Family Division, Sir Andrew McFarlane and was heard in private in order to preserve the dignity of Her Majesty the Queen. The Attorney General was also permitted to attend to represent the public interest.
Sir Andrew McFarlane explained that whilst the sealing of a Will goes against the norm, the wording of the rule 58 does not require there to be exceptional circumstances. The Court only needs to be satisfied that “such an inspection would be undesirable or inappropriate”. Although the lives of the Queen and other senior Royals are public due to their constitutional role and public obligations, the contents of one’s Will and details of the Estate are wholly private matters. Although the public may be curious as to Prince Philip’s testamentary arrangements, there is no true public interest in this information. If the Will were to be made public, it is likely that it would attract undesirable interest and would be intrusive for the Queen.
In the past, Royal Wills have been sealed indefinitely. However, in the case of Prince Philip’s Will, Sir Andrew McFarlane imposed a time limit of 90 years which he considered proportionate and sufficient. Once this time limit has passed, the Court can rule as to whether the Will should be sealed for a further period of time.
Although the application was heard in private, Sir Andrew McFarlane chose to depart from previous tradition and make his judgement a matter of public record in the hope that it will set a precedent for any future applications. Sir Andrew McFarlane stated that the exception should extend to senior members of the Royal family as “…it is necessary to enhance the protection afforded to the private lives of a unique group of individuals in order to protect the dignity and the standing of the public role of the Sovereign and other close members of her family”.
As the application was heard in private, media organisations were not permitted to attend. However, the Guardian has been given permission by Lady Justice King to bring a challenge against Prince Philip’s Executors and the Attorney General in the Court of Appeal. The Guardian is intending to argue that “…the High Court erred in law in denying the media an opportunity to make submissions, or at least attend and hear submissions…” and that this was a serious interference with the principle of open justice. If the Guardian’s challenge is successful, the application may be reheard in the High Court with further consideration given as to whether the media should be able to attend.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
