You may have seen reports and opinions in the news concerning whether Prince Philip’s will should or should not be a matter of public record. The Guardian is seeking permission to challenge the order of a secret hearing where the President of the Family Division ruled that Prince Philip’s will be hidden from the public for 90 years.
The practice of keeping Royal wills under wraps goes back to the death of King George III. It was ruled, by statute, that probate for a sovereign was not necessary and so the will did not need to be made public.
The rules for members of the wider Royal family are more blurred. In 1910 it was ruled that the will of Prince Francis of Teck, a brother of Queen Mary, be “sealed” and its contents were therefore kept private from the general public. It is believed that he bequeathed prized family jewels to a mistress and possibly conceived an illegitimate child and that, were such details be made public, the reputation of the Royal family would be shattered. This set a case law precedent for future senior members of the Royal family and, since then, more than thirty wills have been similarly sealed.
However there is no such statute in place and, should there be one, it would not be obvious which Royals should be included and which should not.
As wills for us non-Royals are a matter of public record, certain steps must be taken to ensure the wishes of the testator (the word which describes the person making a will) are not challenged once a will is made public. It is vital that testators not only give clear instructions to their solicitors, but they must also provide the reasons behind such decisions.
This is the best way to fight off a challenge from an aggrieved relative who has standing to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 and may feel unfairly cut out from their hoped-for inheritance. In turn, solicitors must also conduct robust checks on their clients, to ensure that they:
1. are not being unduly influenced by anyone else,
2. have full mental capacity when providing instructions, and
3. understand the consequences of their will.
They must also ensure there has been no forgery or fraud.
Controversial wills made with neither the protection of privacy guaranteed by the Court, nor the assistance of a legal professional who will have kept contemporaneous notes explaining such decisions or giving any context, are therefore more likely to be open to a successful challenge.