During someone’s lifetime the contents of their will is a private matter. But at what point does the contents of a will become public?
The recent decision of the President of the Family Division of the High Court about the Will of the late Prince Philip highlights a well established but often misunderstood principle about the privacy of the contents of wills.
Privacy Of The Contents Of A Will
The contents of someone’s will is a private matter for that person and whoever assists them with its preparation such as their solicitor. If the person preparing the will (testator) wishes to disclose the contents to other people prior to their death then they may do so. It is however a matter for them.
What Happens On Death
The situation changes following the death of the testator. It will normally be necessary for the executor or executors named in the will to obtain a Grant of Probate before they are able to deal with the administration of the deceased’s estate. A Grant of Probate is an official document issued by the Probate Registry of the High Court which confirms the authority of the executors to deal with the administration of the estate.
The Grant itself will contain the details of the name and address of the deceased, the names and addresses of the executors and an indication of the value of the estate both before and after the settlement of any debts and liabilities.
In addition, attached to the Grant of Probate will be a copy of the will itself.
The Grant of Probate and the copy of the will attached to it become public documents at that point.
Therefore, from the point at which Grant of Probate is issued anyone can obtain a copy of the Grant and the will on payment of a nominal fee.
Is The Contents Of Everyone’s Will Public?
It has long been established the wills of certain members of the Royal Family should not be published following their deaths. The recent application to the Court by the executor of Prince Philip was to establish that that principle applied to his will and that the details of the value of his estate should also be excluded from the Grant of Probate which would become public following its issue.
This has led to some discussion as to whether it is possible to extend that privacy to others who might prefer that the contents of their wills or their wishes regarding the distribution of their estate are kept private following their death.
Unfortunately, it is not possible to keep the contents of the wills of those of us outside the Royal Family secret following the issue of a Grant of Probate. However, it would be possible to maintain a degree of privacy over the intentions of a testator if the will is drafted in the appropriate manner.
The Use of Trusts to Provide Privacy
Where someone wishes to distribute their estate in a manner that does not become open to public scrutiny or in a manner that maintains a degree of flexibility without having to change and update the will on a regular basis then the use of a particular form of trust can achieve both objectives.
A discretionary trust is a trust whereby assets (the residue of someone’s estate for example) is left to named trustees who are given discretion as to how they distribute those assets or apply those assets for the benefit of a class of beneficiaries. The description of the class of beneficiaries can be very specific or very general or “vague”. It could for example be as specific as a list of named individuals, or “my children” or as general as “any of the descendants of X”.
Where discretionary trusts are used in wills they are often used as a means of inheritance tax planning. The will, will set out groups of beneficiaries that the testator wishes to benefit but does not detail how that benefit is to be divided between them.
The details of how the estate is to be divided are set out in a private side letter or statement of wishes. The advantage of those side letters or statements is that they are extremely flexible. They do not need to be in the strict formal legal language of the will and of course, the letter can be updated from time to time without necessarily having to update the terms of the will. The side letter is private and does not become public when probate is granted.
The statements can therefore be a way of maintaining a degree of privacy around how an estate is distributed.
It does not provide the degree of privacy that is extended to the Royal Family but it will provide a screen behind which the detail of an estate can be shielded if that is the testator’s wish.
The benefit of course comes with a burden or obligation. It will be important that the testator is able to choose and nominate trustees that he or she completely trusts to fulfil their wishes as set out in the side letter or statement.