Prince Phil(ip) and the Secret Will

20th September 2021 Will Disputes

Following the sad death of Prince Philip in April this year, attention has turned to the content of his will and how his estate will be distributed. It is no secret that Prince Philip had strong views and opinions - the public interest in if and how such opinions influenced the content of his will and who his estate was left to is inevitable.

It has recently been reported following a private hearing that Sir Andrew McFarlane, a senior judge in the Family Courts, has ordered that the Duke of Edinburgh’s Will, will not be open to public inspection once probate has been granted as would be the normal course.

A grant of probate allows the executor or administrator (those tasked with the duty of collecting and distributing the deceased’s estate) to act on behalf of the estate, sell assets and collect in estate monies before distribution of funds in accordance with the deceased will or the rules of intestacy. Generally, once probate has been granted, the deceased’s will will be available for public inspection. Grants of probate are available to order online without the need for an applicant to show any interest in or relation to the deceased, or their estate.

Historically, Royal wills unlike most wills granted probate have remained sealed and not made available to the public. Whilst such a process is steeped in history it has been accepted by the courts that there’s no public interest in royal wills being made public. That said, Princess Diana’s will did not follow this course and was made available to the public.

Strictly speaking the relevant rules provide that a deceased’s will may only be viewed by the executors/administrators of the estate and their legal representatives until probate is granted. Beneficiaries under a will are not entitled to sight of the will until probate has been granted at which time both documents are available for public inspection. Despite this rule and whilst it is case dependent, it is not unusual for an executor to provide a copy of a deceased’s will to a beneficiary before the grant on the basis they will be entitled to see the will once probate is granted in any event. Usually this is with a view to resolve any queries or disputes as early in the process as possible.

Under the Inheritance (Provision for Family and Dependants) Act 1975 (IHA), certain categories of Claimants (including spouses, children, those maintained by the Deceased amongst others) are able to make a claim against a deceased’s estate for their maintenance. Such claims involve detailed consideration of various factors, including the size of the estate and the needs of other beneficiaries. Sight of a deceased’s will is an important part of this process and any claim has to be issued at court within 6 months of the grant. Wills can also be challenged on validity grounds - sight of the will is imperative for parties to consider any such concerns particularly if there are any unexpected gifts.

While it seems unlikely in the case of Prince Philip – what if he excluded his wife the Queen or one of his children who may have been financially reliant on him – by the time they discovered it, they would very likely be out of time to bring a claim.

The recent decision of Sir Andrew McFarlane to hold the hearing in private and to keep Prince Philip’s will sealed, is in line with a tradition of over 100 years. That said, interestingly Sir Andrew McFarlane went beyond those before him and set out a process, which may mean in future a Royal’s will could be made public. We understand the decision is open to appeal, however, the order means that rather than Royal wills being sealed indefinitely, there is now a process to allow for them to be inspected privately 90 years after probate was granted. Whilst this is a shift in the way the Courts have previously dealt with such matters, in practical terms such a change is unlikely to assist a party who may be considering or entitled to make a claim against a Royals’ estate, given the 90 year period.

The approved process is understood to be that after 90 years, each Royal will could be opened and examined by the monarch’s private solicitor, the attorney general and personal representative of the Deceased (to the extent they are still able). At that time, a decision will then be made as to whether the will can be made public.

It is widely acknowledged and a point that has recently been debated that a Royal’s private matters are to remain private and this extends to their last wishes. The decision to move away from that principle is a big one but in practical terms may have only a limited impact as the decision can still be taken after 90 years for the will to remain sealed and private as has been the case for many years.

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Claire Brierley is an Associate Solicitor located in Manchester in our Will and Trust Disputes department

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