II. Preserving and Publicising Wills

An obvious advantage of the traditional position is that publicity might alert interested parties to the existence of an estate from which they would derive some financial entitlement. Seen in this way, the issue of publicity for wills forms one aspect of the problem of ensuring that those on whom property rights have been conferred (whether by way of outright gift or trust) come to be informed of the same so that they can enforce those rights. The entitlement might be immediate and unconditional (as with a gift or a beneficial interest under a fixed trust), or it might consist of a mere right to be considered for some payment (as with beneficiaries under a discretionary trust or the objects of a mere power). Again, it might be conferred by an inter vivos disposition, or it might take effect under a testamentary instrument.

With inter vivos gifts there is little problem since the formal requirements of an effective gift – principally the requirement of delivery in the case of chattels – will mean that there is little (or no) time gap between the donee learning of his entitlement and his receiving the property in question.Footnote ⁸ In the case of a trust, however, there is nothing in the nature of the arrangement that guarantees that a beneficiary will be informed of his status as such – short, of course, of his actually receiving a payment in that capacity. Yet, as a matter of a general principle, persons who are beneficiaries must be informed of the fact if trustees are to be effectively called to account for the discharge of their duties.Footnote ⁹

Once the focus moves from inter vivos to testamentary dispositions, whether they be in the form of a gift or a trust, problems can arise at several levels. The document that is intended as the expression of the testator's final wishes might be lost between the time of its execution and the death of the testator.Footnote ¹⁰ Alternatively it might be deliberately suppressed, with the result that an earlier, revoked will is admitted to probate or that the person is believed to have died intestate. Even if what was truly the testator's final will is admitted to probate, the bequests and devises that it contains might not reach their intended destination. Personal representatives might not succeed in tracing intended beneficiaries, who consequently remain in ignorance of their inheritance. Clearly, any publicity that is accorded the will is of particular assistance to hopeful legatees so that it is they who take the initiative in approaching those charged with the duty of administering the estate.

There exist several ways by which personal representatives may seek to establish contact with those who have an interest in the proper administration of an estate. One means, that it is firmly established in the annals of fiction, is the reading of the will by the testator's solicitor in front of the assembled relatives.Footnote ¹¹ The process is not entirely a product of novelists' imagination since it was a familiar aspect of the rituals of death, in Victorian times at any rate.Footnote ¹² The modern method is the publication of a notice in the press under section 27 of the Trustee Act 1925 inviting “any person interested” in the estate to file notice of his claim with the personal representatives. Although the aim of the provision is to reach both creditors of the estate and persons beneficially entitled, the difficulty remains that, without access to the contents of the will, an individual has no means of knowing whether he falls within the latter group. That difficulty is compounded by the fact that the executors are not under a legal duty to inform legatees of the existence or terms of a bequest.Footnote ¹³

How did the safeguards for preserving and publicising wills come to assume their present form? It was the Probates and Letters of Administration Act 1857Footnote ¹⁴ that marked the watershed divide in the modern law of probate. Prior to this measure the power to grant probate of wills was vested in the ecclesiastical courts, which had thereby become depositories of the wills of those who had died within their respective jurisdictions. Charles Dickens, who during his teenage years spent some time as a shorthand copyist at Doctors' Commons (the body of advocates serving the ecclesiastical courts in the London area), has left a memorable picture of the registry of the Prerogative Office of the diocese of Canterbury.Footnote ¹⁵ On the specific issue of public access, the preface to an edited collection of such wills relates that this was originally permitted only to “men of the highest name in historical or antiquarian literature” and under the authority of a Secretary of State or other such official. In the mid-nineteenth century, as a consequence of the initiative of Sir John Romilly M.R., access was opened up to “historical students” in general.Footnote ¹⁶ However, there is no suggestion in this that members of the public (or, indeed, the press) could gain sight of the text of a will for reasons of contemporary interest.

Sections 3 and 4 of the 1857 Act, respectively, abolished the testamentary jurisdiction of the ecclesiastical courts and vested it in a newly created Court of Probate. In moving the second reading in the House of Lords of the Probates and Letters of Administration Bill the Lord Chancellor, Lord Cranworth, identified a number of problems that the measure was designed to address.Footnote ¹⁷ Chief among these was that of the missing will of a deceased. Relatives might be at a loss as to where to find it. It might not be in the testator's private papers, and he could well have changed solicitor several times during his lifetime. The Lord Chancellor proposed a solution to the problem in the form of an office where testators could, if they chose, deposit their wills for easier location after their deaths. In addition he suggested the circulation of lists of wills that had been proved between district probate registries and London (including such particulars as the names of testators and executors, all duly indexed). The result would be to “afford as great facilities for consulting wills as the public could require”.Footnote ¹⁸ The main provisions of the 1857 Act, for the purposes of the present article, were section 66 (which stipulated that there was to be a place of deposit for wills that had been proved under the control of the Court of Probate, where the same could be inspected) and section 69 (which provided that official copies of these wills could be obtained upon payment of a fee). These provisions, notwithstanding the later absorption of the Court of Probate into a unified Supreme Court of Judicature,Footnote ¹⁹ can be traced in an uninterrupted line, via the Supreme Court of Judicature (Consolidation) Act 1925,Footnote ²⁰ to sections 124 and 125 of the Supreme Court Act 1981 which were mentioned at the beginning of this article.

In the post-1857 law the critical step for the purpose of access by members of the public is the proving of a will. Prior to that it is a private document and subject to the standards of confidentiality that attend the lawyer-client relationship.Footnote ²¹ What is it about the procedure of probate, it might be asked, that it should make this important difference? Probate has been defined as a “court-operated system for transferring wealth at death”.Footnote ²² It should be noted, however, that it is far from being all-encompassing in this regard. Quite apart from the proprietary rights that devolve on death through the right of survivorship (most typically, equitable joint tenancies in the family home), there exists a statutory facility whereby entitlements of small worth may be administered without obtaining a grant of probate.Footnote ²³

Three functions have been identified as being served by probate: title clearing; creditor protection; and implementing the testator's donative intent.Footnote ²⁴ These need to be considered in the light of the publicity that has long been characteristic of the process.

It is difficult to see how probate serves the cause of title clearing. The passing of a form of property through the probate procedure does not confer immunity against the claims of those who assert a title superior to those who acquire property through the personal representatives of an estate – in the form, for example, of an exception to the rule nemo dat quod non habet. Footnote ²⁵ The most valuable asset of the estate, so far as most testators in England and Wales are concerned, is the family home, which in the great majority of instances benefits from the state guarantee of registered title. As for the protection of the interests of creditors, empirical research conducted in America leads to the conclusion that credit agencies attach little importance to probate as a means of securing the repayment of debts. Most agencies did not even assign personnel to comb through newspaper obituaries and death registers for this purpose.Footnote ²⁶ In English law, in any case, the interests of creditors can be adequately protected by provisions such as section 27 of the Trustee Act 1925, which furnish protection for personal representatives only after they have duly advertised for claims against the estate. Such advertisements, routinely to be found in the columns of national and local newspapers, serve their function well enough without the need to disclose the details of the dispositions made by the testator.Footnote ²⁷

Finally, it will be recalled, probate is said to serve the aim of securing the donative intentions of the testator. The procedure can be either contentious or non-contentious. In its contentious form, certainly, it provides a forum in which to decide such matters as whether or not a given document is, in reality, the testator's final will. In the trial of such issues the prevalence of publicity is understandable since the administration of justice presumptively takes place in public. That, however, cannot supply an account of the public accessibility of wills in general since those – the great majority – which go through non-contentious probate are equally subject to public access.

Therefore there is nothing intrinsic to probate that would appear to require general access to wills once they have undergone that process. However, the transfer of the probate jurisdiction in 1857 from church courts to state courts led to wills being subjected to legislation enacted in the last 150 years that controls the flow of official information – whether by forbidding disclosure (under the Official Secrets Acts) or by creating rights of access (under the Freedom of Information and Public Records legislation).

For all that wills duly proved are open to public inspection, the fact that those who administer the system are subject to the Official Secrets Acts was powerfully brought home in a prosecution in 1932 of a clerk employed at the Principal Probate Registry. The clerk, Lionel Ballard, was convicted under section 2 of the Official Secrets Act 1911 for releasing, only a few hours ahead of the appointed time, the details of the wills of three famous individuals of the day.Footnote ²⁸ It is difficult today to imagine the degree of public interest in the testamentary dispositions of the three that led a journalist on the Daily Mail, Frederick Henry Budgen, to bribe the clerk so that his newspaper could gain a marginal lead over its competitors. Scarcely credible, too, is the fact that Budgen was himself prosecuted for unlawful receipt of official information under section 2(2) of the 1911 Act, and that when he appealed (unsuccessfully) against a prison sentence of two months the Attorney-General himself appeared for the Crown.Footnote ²⁹

Wills, as public documents, could have been made subject to the system of contemporary access under the Freedom of Information Act 2000. However, it is quite clear that they fall within the category of “exempt information” as information that is reasonably accessible to an applicant otherwise than under the terms of that statute.Footnote ³⁰ Eventually wills lose their contemporary significance and their contents become matters of historical interest only. Probate documents rank as public records for the purpose of access under the Public Records Acts 1958–1967, the term even extending to the records of ecclesiastical courts in exercising their testamentary jurisdiction prior to 1857.Footnote ³¹

A vital condition of an effective system of public access, clearly, is the preservation of the documents that are to be the subject of the access regime. In this context it is necessary to turn to section 20(1) of the Theft Act 1968, the purpose of which has baffled criminal lawyers. The following, while not solving the puzzle, aims to cast further light on the problems associated with the provision. Section 20(1) penalises any person who:

The central issue, for the purposes of the present article, relates to the phrase: “of or belonging to, or filed or deposited in, any court of justice or any government department”. Does this qualify all the items that precede it: in particular, “will or other testamentary document”? Or does it apply only to the last item in the list: “any original document”? One argument in favour of interpreting the phrase so as to include wills and testamentary documents generally is that – as has just been seen – these are routinely placed in both courts of justice and government departments (in the former when proved, and in the latter when removed, some time after probate, to the Public Record Office). On the other hand, it does lead to the odd conclusion that section 20(1) affords protection to those wills that, on account of their official custodianship, stand least in need of it. Those that are left, for example, in a solicitor's office or in a drawer in a private residence fall outside its scope.

Section 20(1) had antecedents in the Larceny Acts 1861 and 1916.Footnote ³² Section 6 of the 1916 Act encompassed in brief terms the theft of any testamentary instrument, irrespective of whether the testator was alive at the time or not.Footnote ³³ Section 29 of the 1861 Act was identical in that respect, and also in that it was not qualified by the requirement that the document be filed or deposited in a court of justice or government department. In contrast, its scope extended beyond stealing to include the destruction, cancellation, obliteration or concealment of the instrument in question. It also contained the proviso that it was not necessary in any indictment to allege where title to the instrument (in the sense of the ownership of the paper on which it was written) was vested.

What was the mischief at which all three provisions were aimed? The most direct form of dishonest interference with a testator's final wishes as to the destination of his property is to forge his will. The Wills Act 1837, in requiring that the testator sign the document and that this be attested by at least two witnesses,Footnote ³⁴ provides some measure of safeguard.Footnote ³⁵ However, there are other ways in which to profit dishonestly from an estate without going as far as committing forgery. Assume, for example, that X is the only relative of T, who has made a will leaving all his property (let us say) to certain charities. On T's death, X is not forthcoming about the location of the will, which in consequence is never found. T is therefore believed to have died intestate, and X inherits his whole estate. Or again, Y is named as a legatee under a will executed by W. Some time later W executes a second will which revokes the earlier instrument and leaves nothing to Y. Y's lack of candour concerning the existence of the second will leads all concerned to the conclusion that the first will remained unrevoked, and it is that document which is admitted to probate.Footnote ³⁶

If these two situations are to be brought within the terms of section 20(1) of the Theft Act 1968, the words “of or belonging to, or filed or deposited in, any court of justice or any government department” must be held not to qualify “any will or other testamentary document”. Equally, the term “conceal” (which is used in only two of the three statutory provisions) must be taken to extend beyond moving the location of the will to a hiding place to encompass the giving of evasive answers to the personal representatives, or even to failure to approach them with the required information.

Very little light is cast on section 20(1) by the report of the Criminal Law Revision Committee which foreshadowed the Theft Act 1968.Footnote ³⁷ Its commentary on Clause 16 of the draft Theft Bill that was appended to the report noted that in recent years there had been a dearth of prosecutions under the earlier provisions. The Committee therefore wondered whether it was necessary to retain the offence that went on to find renewed expression in section 20(1) of the 1968 Act.Footnote ³⁸ In the event it was retained on the ground that the actions covered by section 20(1) were often the first steps taken towards committing a fraud without necessarily qualifying as an attempt in law. Smith pronounces this to be “not a particularly convincing explanation” for the retention of the offence,Footnote ³⁹ noting that criminal damage will “almost certainly” be committed by a person who falls within the terms of the section.Footnote ⁴⁰ Several points should be made about this observation. It is true only of those actions listed in section 20(1) that amount to some physical damage to the paper on which the will is written. It would not encompass mere concealment of the will. Even if criminal damage is committed, this is a crime the gravity of which cannot be gauged by the mere physical act of destruction. The true measure of harm is the loss (whether actual or potential) of an individual's inheritance. It should be noted in this connection that the destruction or concealment of a will does not necessarily lead to loss to an intended beneficiary under the missing instrument. It is possible to admit to probate the contents of a will that has been lost or destroyed.Footnote ⁴¹ It is probably for this reason that section 20(1) is drafted merely in terms of the relevant acts being done with a view to bringing about the gain or loss in question.Footnote ⁴²

III. The Adverse Effects of Testamentary Publicity

While the publishing of wills is useful in securing certain ends, it does carry with it the risk of harming the interests of a range of persons, especially their interests in reputation and privacy.

A will might contain a passage that is defamatory of – or, at least, offensive to – a person still living. This would not be unusual in situations where the testator has sought to justify the exclusion from the will of a person who might have been expected to receive a bequest. The problem can be tackled, at one level, by omitting the words in question so that anyone who applied for access to the will would receive a copy without the offending passage. The court so ordered in In the Estate of White,Footnote ⁴³ where the testator had inserted some “scandalous and defamatory” words about his wife (to whom he had left nothing). As is to be expected, applications to excise words have made the observation that scandalous extracts are more likely to be reproduced in the press than routine testamentary dispositions. In In the Goods of Bowker Footnote ⁴⁴ the affidavit in support of the successful motion to omit certain words from the probate of the testator's will emphasised the point that, unless the passage was omitted, it “would be broadcast in the Press and particularly in the locality where the deceased was well known and where the deponent and other members of the family lived”.Footnote ⁴⁵ Clearly, if (as is very likely) the words in question do not effect a disposition of property, the omission of them will not jeopardise the basic purposes of probate.Footnote ⁴⁶

What is the legal position if a defamatory passage remains in the will as admitted to probate, whether because there was no application to exclude it or because the application was unsuccessful? The question has not arisen in English law,Footnote ⁴⁷ though there is a small body of case law in the USA which is of some assistance in illuminating some of the problems in this area. The background that is shared by both legal systems is the common law rule, actio personalis moritur cum persona. This means that actions in tort are terminated by the death of either the injured party or the person who inflicted the injury. The rule has been subjected to statutory amendment here, as it has in many US jurisdictions. It is necessary to pay close attention to the English provision. Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 states in general terms that “all causes of action subsisting against or vested in [a deceased person] shall survive against, or, as the case may be, for the benefit of, his estate”. This amounts to the abolition of the actio personalis rule – an abolition that is made subject to a number of exceptions, including the action for defamation. In short, therefore, the position in regard to defamation remains unchanged from that prevailing at common law. However, it should be asked whether, at the time of the testator's death, there is an action for defamation “subsisting against” him by virtue of a defamatory extract in his will. An act of publication, it will be recalled, is an essential element of the tort of defamation. It could be that the testator did publish the material in circumstances that would not be covered by legal privilege, but died before an action could be brought against him. This situation falls squarely within the terms of the actio personalis rule as expressed in the 1934 Act. Alternatively, the will might have been written by the testator either without publication or with only privileged publication during his lifetime. Here no action would have vested at the time of his death. There is, it should be noted, no necessary element of publication in the required attestation of the testator's signature by two witnesses. It is not required that they should have sight of the contents of the document, still less that they should know its nature. And if curiosity should lead them to read the defamatory passage, this in itself would not constitute publication to them.Footnote ⁴⁸ It could be argued, in this alternative situation, that the tort set in motion by the testator writing the words is completed only when his personal representatives communicate the contents of the will in a non-privileged context. In that event the testator and the personal representatives could be regarded as joint tortfeasors.

A will, to repeat the theme of this article, is ultimately a public document. This point was taken up in the American case, Harris v Nashville Trust Co.,Footnote ⁴⁹ where it was stressed that, however many people had previously seen the defamation, the essence of the harm to the plaintiff's reputation lay in making the remarks in question a matter of public record. There is, on the other hand, a difficulty in identifying the crucial act of publication as being that which follows from the granting of probate. Since that is a judicial proceeding – even if only in an attenuated senseFootnote ⁵⁰ – it should be protected by privilege.Footnote ⁵¹

The possibility that a will might contain defamatory material is quite low when compared with the routine disclosure of individuals' financial affairs that forms an integral part of the process of probate. The issue of loss of privacy, therefore, is central to the concerns of this part of the article. In the USA, indeed, there is a body of publications aimed at the layman instructing him on how to avoid the process of probate with, amongst its other disadvantages, the ensuing loss of confidentiality for his financial affairs.Footnote ⁵² The probate court, as has been seen, can safeguard a person's interest in reputation by omitting any words that are defamatory of him from the probated copy – a decision that is the easier to take since the libellous words are very unlikely to have any dispositive effect. This expedient is not available to protect privacy interests since the disclosure of the existence (or absence) of a testamentary gift and its size are the very essence of a will. In view of the (as yet) undeveloped state of the law of privacy in English law it is only possible to speculate on some of the central issues, both theoretical and practical, that might be posed by access to wills and the publication of their contents.

That legatees have a privacy interest was acknowledged by the Younger Report in noting: “widespread knowledge of a large inheritance often leads to begging letters”.Footnote ⁵³ There is a slight analogy to be drawn here with the protection afforded to lottery winners who wish to remain anonymous – slight, since legacies usually lack the enormous size and arbitrary nature that are characteristic of lottery wins.Footnote ⁵⁴ As for the testator himself, there is a substantial body of theoretical opinion that rights, including the right to privacy, cannot be said to be possessed by those who are dead.Footnote ⁵⁵ On the question of legal enforcement, there would be considerable obstacles to any attempt, through the Human Rights Act 1998, to deploy in this area the right to privacy contained in Article 8 of the European Convention on Human Rights. At the very outset proceedings may be brought under the Human Rights Act only by those who are (or would be) a “victim” of the unlawful act.Footnote ⁵⁶ Even if this barrier could be overcome, it is a central feature of the Act that proceedings may not be brought to challenge actions that are required to be performed by statute.Footnote ⁵⁷ The existence of sections 124 and 125 of the Supreme Court Act 1981 would immediately dispose of the possibility of any proceedings being brought against the Probate Registry,Footnote ⁵⁸ though the press, in choosing to report the contents of any will, would not be protected in the same way. In any event, to judge by the developed case law on privacy of the USA, suits will be rejected that are based on nothing more than the defendant's dissemination of information gleaned from documents (for instance, birth certificates) that are matters of public record.Footnote ⁵⁹

Remarkably, open access to wills has been used as a benchmark standard from which to justify increased loss of privacy in another area of property law: public access to the land register. The starting point was the secrecy of the register under the Land Registration Act 1925.Footnote ⁶⁰ Apart from some exceptions in favour of government bodies, no one other than the registered proprietor or a person authorised by him was allowed to inspect the register. From this there has been a complete reversal to an open land register effected by the Land Registration Acts 1988 and 2002.Footnote ⁶¹ In making the case for this transition reference has been made to analogous registers relating to property and personal information. The argument was that, if the contents of wills (for example) are publicly available, so a fortiori should the contents of the land register with its less intimate content. This was the submission advanced, both by the Law Commission in making the case for an open register,Footnote ⁶² and by the Land Registry in setting out the arguments for and against the further step of including on the register (and consequently making available for all to see) the price paid for the land on the most recent sale. As the Land Registry document puts it, “matters which might be regarded as more private are open to public inspection”, citing the example of wills that have been admitted to probate.Footnote ⁶³

At two stages, therefore, the case for disclosure has been made, in part, by reference to the questionable assumption that wills are quite properly open to public inspection. Even so, provision has been made for retaining the secrecy of the land register in certain respects. Although the Land Registration Act 1988 conceded access, not only to the register itself, but also to documents in the custody of the registrar relating to any land or charge, it envisaged a distinction between those documents access to which would be as of right and those where it was to be at the discretion of the registrar.Footnote ⁶⁴ The current provision, section 66 of the Land Registration Act 2002, provided the basis for the making of rules that would contain exceptions to the general right of access. These, as subsequently promulgated, allow for the making of applications to the registrar to deny access on the ground that the document in question contains “prejudicial information”.Footnote ⁶⁵

Land registry entries and probated wills are alike in that the general right to inspect them makes available a fund of useful information for academic research and the formulation of public policy. In the former case it facilitates the monitoring of movements in land prices and indeed of changing patterns in the ownership of land itself.Footnote ⁶⁶ In the latter it makes possible the investigation of the holding and transmission at death of property in general. Probate records have been extensively used in research of this nature by economists such as Josiah Wedgwood,Footnote ⁶⁷ C.D. Harbury,Footnote ⁶⁸ and A.B. Atkinson.Footnote ⁶⁹ They have also been used for wider purposes, such as the investigation of patterns of employment among women.Footnote ⁷⁰

The importance of access to wills for the conducting of social research was emphasised by the Press Council in stating its opposition to any departure from the established position.Footnote ⁷¹ For some investigative purposes it suffices to have access to the total value of the estate. Where, by contrast, it is patterns of bequeathing that are the subject of inquiry, it becomes necessary to see the particulars of how individual estates have been distributed.Footnote ⁷² Whatever the level of investigation, it is apparent that probate records are used as an informal census of wealth (or other data). The “census rationale” – as we may term it – has emerged as a purported justification, rather than a historical explanation, of the phenomenon of probate publicity. It is not surprising, therefore, that probate records are quite deficient as a method of compiling reliable information about wealth holding. Some brief indication can be given as to why this is so. Under inheritance tax, as formerly with estate duty, there is a strong incentive for the wealthy to reduce the size of their estate by making significant inter vivos transfers.Footnote ⁷³ Furthermore some items that pass on death may not be valued for the purposes of probate. An instance very much in point is property – most usually the family home – which accrues to another joint owner through the right of survivorship. Of course, researchers are fully aware of these limitations and adjust their calculations accordingly. More significant, however, is the fact that the data that is gathered from households in the regular censuses is protected from disclosure by the criminal law. While aggregated data is publishable (indeed the whole purpose of conducting such censuses would be stultified if it could not), it is an offence to disclose any “personal census information” – defined as “any census information which relates to an identifiable person or household”.Footnote ⁷⁴

IV. Mitigating the Loss of Privacy

Given the fact of open access to the contents of wills that have been proved, what attempts have been made to secure a measure of confidentiality? In this part of the article two devices in actual (if sporadic) use will be considered. This will be followed by some account of the various attempts that have been made to effect changes in the law.

It is trite learning that the subject of secret trusts came into being largely on account of the wish of testators to maintain posthumous secrecy over aspects of their lives of which they were not entirely proud (keeping a mistress or fathering a child out of wedlock). For this purpose they can choose between the total secrecy of a fully secret trust (where, on the face of the will, the secret trustee appears to take beneficially) and the semi-confidentiality of a half-secret trust (a teasing arrangement where the existence of the trust and the property subject to it are exposed to view, but not the identity of any beneficiary).

Some general points about secret trusts should first be made. In one sense, all trusts are secret. No outsider has access as of right to their terms.Footnote ⁷⁵ The problem arises in regard to testamentary trusts since, unlike their inter vivos counterparts, they happen to fall within the ambit of public probate. Nevertheless, it is not the fact that wills may be accessed by anyone that is wholly responsible for creating the situation where publicity is sought to be avoided by means of creating secret trusts. Even if their contents were not made available for inspection by all, the testator's immediate family would come to learn (directly or through hearsay) of their dispositions. Furthermore, the institution of the secret trust cannot remedy one aspect of probate publicity: the disclosure of the value of the estate.

One point that is central to the theme of this article is that secret trusts depend for their effective functioning on one category of person – the beneficiaries – being brought into the secret. Otherwise all hinges on the integrity of the secret trustee(s) and the assurance that he or they would not be tempted to divert the trust property into their own pockets.Footnote ⁷⁶ For, if secret trusts avoid the disadvantages of will publicity, they also lack its advantages. There is no effective means whereby a person who believes that he might be the beneficiary of such a trust can ascertain the true position. It was perhaps by way of response to this problem that Professor Sheridan advanced a proposal for the compulsory registration of secret trusts, and indeed of wills in general.Footnote ⁷⁷ As regards wills, a similar suggestion had been made by Jeremy Bentham on the ground that they are “the kind of deeds most liable to be fabricated”.Footnote ⁷⁸ Sheridan does not say what the sanction would be for failure to register, unlike Bentham who categorically stated that in the absence of registration under his scheme the will would be a nullity. More relevant to the theme of this article is Sheridan's proposal that the register be open to inspection, but “only to persons having business with the will”.Footnote ⁷⁹ But who is such a person, and judged by what criteria? The system of undifferentiated access to wills possesses at least the advantage that such persons do not need to be defined. As regards secret trusts, the proposal has the merit of furnishing a source of information for those who believe that they might be the beneficiaries of such arrangements – though, unless applications were closely scrutinised, it might also turn into a source for those from whom the testator would prefer to withhold the information. In any case, if secret trusts are effectively enforced by their beneficiaries under the present arrangements despite the absence of systems of registration and publicity – a matter on which there is no reliable evidence – it would indicate that a regime of less than complete openness is consistent with the implementation of the testator's wishes.

The second device that is used to secure confidentiality is the sealing of the will. Since the early twentieth century it has been the standard, if (until of late) little noticed, practice in regard to royal wills.Footnote ⁸⁰ In this context some light has been cast on the device by the recent application of Robert Brown, an accountant based in Jersey, to gain access to the wills of Princess Margaret and the Queen Mother which were both sealed shortly after their deaths in 2002.Footnote ⁸¹ It has also emerged that application may be made for the sealing of the wills of non-royals though, in marked contrast to those of the royal family, these are rarely successful.Footnote ⁸² A recent parliamentary question addressed to the Department for Constitutional Affairs elicited the response that no statistics on the subject were available nor would any be compiled.Footnote ⁸³

The procedural steps in the sealing of a royal will, at any rate, have been revealed. Application is made to the High Court by the executors of the will. A summons is then served on the Treasury Solicitor, who proceeds to instruct the Attorney – General. The matter is heard before the President of the Family Division, the hearing taking place in chambers (it could scarcely be in open court without jeopardising the very point of secrecy). This is followed by a press report that the application was successful. As for applications to seal the wills of non-royals, one can only speculate as to whether these too would be heard by the President or would involve the Attorney-General (who is joined in the application to represent the public interest). If more is now known of the procedure, the same cannot be said of the substance of the grounds upon which applications are decided. The orders to seal the wills of the Queen Mother and Princess Margaret precluded their being opened without the consent of the President of the Family Division for the time being. In disposing of Robert Brown's request for permission to see the two documents, Sir Mark Potter P. confessed to being in the dark as to the matters that had been placed before his predecessor in making the orders.Footnote ⁸⁴ He decided the matter on the basis that Rule 58 of the Non-Contentious Probate Rules 1987Footnote ⁸⁵ governed his decision (though the Rule refers to the opinion of a district judge or registrar, not that of the President), and that the power to seal a will was “concerned with considerations of privacy”.Footnote ⁸⁶

The background to that case is Brown's long-standing belief that he is the illegitimate son of Princess Margaret.Footnote ⁸⁷ Consequently, he claims, the couple (both since deceased) who raised him were incorrectly described on his birth certificate as his parents. Almost as striking as the strange nature of the claim has been the way in which Brown has sought to pursue it in the courts. It is difficult to understand why an action to establish what he regarded as his true parenthood should be brought in the form of an application to see the wills of the persons he believed to be his mother and grandmother. There are family law proceedings that, arguably, he could have invoked that would have raised the issue directly.Footnote ⁸⁸ Equally, as the President's judgment points out, gaining access to the wills would scarcely be of assistance to him in his quest. Furthermore, it could be added, if Brown hoped to be vindicated by finding some financial provision for him in either will, the traditional way of making a testamentary provision in favour of illegitimate offspring is (as already noted) through a secret trust. Sight of the will, in that event, would reveal little (if anything). Finally, as a method of establishing a place in the line of succession to the throne it would encounter the obstacle that illegitimate offspring are excluded from any place in that line.

In the event, Brown's failure to adduce even a minimal amount of supporting evidence led to his application being dismissed as an abuse of process. The Court of Appeal, however, has subsequently ruled him to be entitled to a substantive hearing of his claim, particularly in view of the lack of transparency of process at the time when the two wills were originally sealed.Footnote ⁸⁹ His counsel's arguments touched on the traditional justifications of access to wills that have undergone probate. In the case of royal wills, he submitted, the justifications applied with even greater force than usual in view of the unique position of the royal family. Yet, as was entirely clear from its wording, Rule 58 of the Non-Contentious Probate Rules did not distinguish between their wills and those of the rest of the population. This leads us to enquire whether alternative bases for the distinction can be found. It is necessary for this purpose to consider separately the will of the late Monarch and the wills of members of the royal family in general.

The modern history of the law relating to the will of the reigning sovereign starts with a statute of 1800, which allowed George III and (in turn) his successors to make a will in their private capacities.Footnote ⁹⁰ The difficulty had been that of differentiating between the private wealth of the Monarch and the assets that he held in order to finance government expenditure. The leading work on the finances of the Monarchy, Phillip Hall's Royal Fortune, describes the aim of the statute (to which he refers as the Crown Private Estate Act 1800) as being “to allow the King to become a private person in the sphere of ownership, as well as a public person who was head of the government”.Footnote ⁹¹

Such a will, however, could not be admitted to probate. The point is made in several authoritative texts, which cite two cases in support: In the Goods of His Late Majesty King George the Third,Footnote ⁹² and In the Goods of His Late Majesty King George III.Footnote ⁹³ The earlier case is quite clear on the point:

If the granting of probate is the precondition of public access to a will, it is not surprising that the will of the Monarch, at any rate, is exempt from disclosure. Phillip Hall, however, advances an entirely different basis for the exemption: the Crown Private Estates Act 1862. His claim that it was this statute which laid down the rule that “the monarch's will need not be published”Footnote ⁹⁵ appears to be based on section 5: “… that a will or other testamentary disposition by Her Majesty, her heirs or successors, of or concerning any such private estates as aforesaid, shall not require publication; … ” It is submitted that the word “publication” is used here, not in its ordinary meaning of making generally accessible, but rather as a technical term in the law of succession. A testator, in this sense of the word, published his will when he stated in the presence of witnesses that the document that he was executing was his will.Footnote ⁹⁶ Clearly, on this interpretation section 5 provides no basis for maintaining the secrecy of the Monarch's will.

Even if Hall's view is correct it could not furnish a legal basis for the practice, established over the past hundred years, of the sealing of wills of members of the royal family other than that of the Monarch. In this context the precedent – setting case is that of Prince Francis of Teck, brother to Queen Mary, the wife of King George V. Born in 1871, Prince Frank spent much of his short life teetering on the edge of scandal. On his death in 1910 Queen Mary successfully applied for the sealing of his will to Sir Samuel Evans, freshly appointed head of the Probate, Divorce and Admiralty division of the High Court.Footnote ⁹⁷ Since then four cases (albeit unreported) involving applications to seal the wills of the wider royal family – The Princess Royal (1931),Footnote ⁹⁸Prince Arthur of Connaught (1939),Footnote ⁹⁹Duke of Kent (1943),Footnote ¹⁰⁰ and Princess Beatrice (1945)Footnote ¹⁰¹ – have been noted by a leading practitioners' work.Footnote ¹⁰²

These, however, form only part of the picture. A list filed in the National Archives identifies 27 royal wills in Somerset House that have been sealed by order, from the will of Francis of Teck to that of Prince Henry, Duke of Gloucester, in 1974.Footnote ¹⁰³ Several aspects of the list merit attention. No mention is made of the wills of the two reigning sovereigns who died during the period: George V and George VI, in 1936 and 1952 respectively. This omission is entirely consistent with the legal rule that such wills do not have to undergo probate.Footnote ¹⁰⁴ Against each person there is attached a valuation of the estate, with the sole exception of Queen Mary in 1953. Finally, and unusually, “all records as normal” is the entry recorded in the case of Princess Helena Victoria (in 1948).Footnote ¹⁰⁵

The legal basis of the exemption in favour of the will of the Monarch, it is submitted, rests on nothing more complex than the well-established principle of construction: that the Crown is not bound by an Act of Parliament “which imposes obligations or restraints on persons or in respect of property unless the statute says so expressly or by necessary implication”.Footnote ¹⁰⁶ Since there is nothing in the operative provisions – sections 124 and 125 of the Supreme Court Act 1981 – to bind the Crown in either of these ways, it follows that the Monarch is exempt from their scope. There is, however, a paradox at the core of this explanation. The question as to the disclosure of a Monarch's will must necessarily arise when his or her successor is on the throne. Exemption from disclosure, therefore, cannot be a privilege that is capable of being claimed by the reigning Monarch for his own benefit. Alternatively, it may be that the royal prerogative in general forms the basis for the secrecy of royal wills. If so, it is an aspect of that subject that has not been noted by any of the writers on the constitution.Footnote ¹⁰⁷ It would be a strange prerogative power, exercisable over the wills of the wider royal family, but beyond the traditional controls of ministerial advice and judicial review.Footnote ¹⁰⁸

To summarise thus far, neither the secret trust nor the sealing of wills is entirely satisfactory as a means of checking the uncontrolled dissemination of the contents of testamentary documents. The latter is little known, its legal basis is obscure, and it is seldom invoked successfully outside the royal circle. Any success enjoyed by the former is likely to be at the cost of jeopardising the inheritance rights of the trust beneficiaries. Attempts have therefore been made to correct the root problem of intrusive press reporting. From time to time private member's bills have been introduced in Parliament which, if they had been passed, would have made unlawful the publication in the media of more than the barest details of probated wills. For example, three bills drafted in broadly similar terms were introduced in the House of Commons in 1954, 1955 and 1958 respectively by Charles Mott-Radclyffe, Nigel Fisher and Marcus Kimball.Footnote ¹⁰⁹ Each would have made it illegal to publish in any newspaper the particulars of the will of a deceased person other than the date of the will and the name of any executor or administrator of the estate.

The detailed provisions merit some attention. In each of the three measures an element of choice was provided as to whether the publication ban was to apply in a particular instance. The Mott-Radclyffe and Fisher bills stipulated that it was not to be brought into force if consent to publication were given either by the testator (whether in the will “or otherwise”) or by the personal representatives. The starting point of Marcus Kimball's bill was the opposite: the prohibition on publication was to apply only if the deceased had expressed, in any “testamentary instrument” executed by him, his preference for confidentiality. Under all three measures bequests in favour of a charity or the Government or any public or local authority could be freely reported. Equally, in the interests of historical research, all prohibitions on reporting were to cease to apply if thirty years (or, in the case of one bill, twenty-five years) had elapsed since the death of the testator.

Mr Kimball's Wills, &c. (Publication) Bill progressed as far as the Committee stage in the House of Commons and consequently underwent some changes. Especially noteworthy are those relating to permissible disclosures. The measure was not to apply to any bequest to a solicitor, registered medical practitioner or nurse who had had any professional contact with the testator within five years of his death.Footnote ¹¹⁰ The explanation was, presumably, to facilitate the exposure of testamentary gifts that might have been secured by undue influence.Footnote ¹¹¹ Indeed, fresh in people's memories at the time will have been a notorious case of a doctor who had benefited on a huge scale from the wills of his patients.Footnote ¹¹² A further amendment embodied one of the traditional bases upon which open access to wills is defended. It stipulated that, notwithstanding any restriction, a personal representative remained free to publish such details of the will or the amount of the estate “as appear to him to be necessary for the purpose of tracing the whereabouts of any beneficiary” of the estate.Footnote ¹¹³

In the end all three measures failed to pass into law. In this respect they shared the usual fate of private member's bills which lack support from the Government. Added to their difficulties was the opposition of a newspaper industry, channelled through the Press Council,Footnote ¹¹⁴ that was fearful of the creation of legally enforceable privacy rights.