The Duke of Edinburgh’s Will to be kept private for 90 years

What is the process for having a Will “sealed”?

Following a private hearing that took place recently, the President of the Family Division, Sir Andrew McFarlane, has ordered that Prince Philip’s Will should be sealed and kept private for 90 years to maintain the dignity of the Queen and the Royal Family. This poses an interesting question: how are Wills “sealed”? To answer this, it is necessary to first look at the historic context and then to take a look at the unprecedented judgment in Prince Phillip’s case.

The first point to make is that the sealing of the Duke’s Will is not a landmark case despite the publicity it has gained. It has been a longstanding tradition that the Royal Family’s Wills are removed from public access via requests made to the President of the Family Division. The earliest example of this dates back to Prince Francis in 1910 and, more recently, the Queen Mother and Princess Margaret. What does distinguish the sealing of the Duke’s Will is that this is the first case with a public judgment. By making the judgment public, we have been given a unique insight into the application of the relevant rules and principles considered in determining when a Will should be removed from public access. 

The Executor’s Application

The executor of the Duke’s Will sought to rely on a number of factors. In summary, they drew particular attention to the long-standing practice of sealing Royal Wills and the court adopting a consistent approach to avoid unnecessary difficulty in future. They also referenced a draft revision to the Non-Contentious Probate Rules 1987 (‘NCPR’) that specifically relates to the Royal Family which provides that their Wills shall be automatically sealed. The underlying theme of the application was for the court to take account of Her Majesty’s right to privacy in relation to her personal matters.

The Legal Position

The judgment sets out the default statutory position relating to the inspection of Wills. This is that when probate is granted in respect of a Deceased’s estate, any Wills or other documents that are relevant to the Grant must be open to inspection. This is set out in section 124 of the Senior Courts Act 1981.

McFarlane also sets out the less well-known exception to the general position. Rule 58 of the NCPR states: “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 the District Judge or Registrar, such inspection would be undesirable or inappropriate.”

The judgement

McFarlane explained the words “undesirable” and “inappropriate” should be given their ordinary meaning. This means that the hurdle established by rule 58 NCPR is not an especially high one.  An additional element to the test was added in the context of a senior member of the Royal Family – this is that the question of whether inspection of a Will is undesirable or inappropriate is only possible to answer by determining what is in the public interest.

McFarlane ruled that Prince Phillip’s Will should be sealed for a period of 90 years, stating:

‘This departure from the ordinary rule for senior members of the Royal Family is rooted in the unique status of the Sovereign and Head of State. There is inherent public interest protecting the Sovereigns dignity and that of the close members of her family in order to preserve their position and fulfil their constitutional role.’

Comments

Rule 58 NCPR is seldom used even though the test itself is not a difficult one to satisfy. In cases other than senior members of the Royal Family, only the lower threshold for the inspection of a Will to be “undesirable” or “inappropriate” needs to be satisfied. There are many circumstances in which one can imagine such an argument being made, particularly in the case of a public figure or celebrity. It will be interesting to see whether the judgment, in this case, leads to a run of applications by people wanting to keep their family or friends’ Will private.  

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