In the United Kingdom s124 of the Senior Courts Act 1981, (‘SCA 1981’) provides that when a grant of probate is made, any Will or other documents that are relevant to that grant must be open to inspection.
Rule 58 of the Non-Contentious Probate Rules 1987 (‘NCPR’) provides that:
“An original will, or document referred to in section 124 of the [Senior Courts] Act shall not be open to inspection if, in the opinion of a District Judge or Registrar, such inspection would be undesirable or inappropriate.”
While the Sovereign’s will does not need to be proved by a grant of probate, the estates of other members of the Royal Family shall be administered following the ordinary probate rules, this includes the power of a court to direct that the will or other document filed with the grant of probate not be open to inspection.
The executor of HRH Prince Philip, Duke of Edinburgh (“the Deceased”) applied for an order that the deceased’s will, executed on 5 June 2013, be sealed in an envelope and that no copy of the will should be made for the record or kept on the court file. The purpose of the application is to protect the dignity of the person of the Sovereign, by protecting the privacy of those family members closest to Her. Additionally, the application seeks to exclude the value of the estate from the grant of probate.
Recent case law concerning sealed Royal Wills
The first family member whose will was sealed up by the court was the younger brother of Queen Mary, Prince Francis of Teck, who died in 1910 leaving valuable emeralds prized by the Queen to his mistress.
In 2007, Robert Brown, claiming to be the illegitimate child of Princess Margaret, applied to unseal the wills of the Queen Mother and Princess Margaret however this claim was struck out as “vexatious and an abuse of process”.
On appeal, the Court of Appeal held that although Mr Brown was motivated by a “belief that is both irrational and scandalous” accepted that he should have been able to raise several general issues of public importance relating to the original process by which the Wills had been sealed.
Attorney Generals Practice note
Following the discontinuation of the appeal by Mr Brown, he made a request under the Freedom of Information Act 2000 for the document describing the practice of the sealing of Royal wills. Before the hearing, the Attorney General had decided to disclose the confidential note which provided that the Family Division applied to ‘senior members of the Royal Family’ including
• The Consort of a Sovereign or former Sovereign.
• The child of a Sovereign or former Sovereign; and
• A member of the Royal Family who, at the time of His/or Her death, is first or second in line of succession to the throne or the child of such a person.
Once any potential appeal against his judgement has been able to run its course Sir Andrew as the President of the Family Division will publish a complete list of the names of the Royal Family members whose Wills are sealed in envelopes and contained in a safe to which he is the custodian. Additionally, the wills of other, less senior, members of the Royal Family may have been sealed for specific reasons, or due to a wider definition of “Royal Family” being applied in this context in earlier times.
The parties argued that the wills should be sealed for 125 years, but Sir Andrew believed that 90 years was “proportionate and sufficient” after which each royal Will would be opened by a professional archivist to ensure the documents and seals are properly preserved prior to examination by the Sovereign’s private solicitor, the keeper of the Royal Archives, the attorney general and any personal representative of the deceased who may still be available. A decision as to whether the Will is made public will be made at that stage, however, Sir Andrew believes that some royal wills may never be published, even in part.