Why are the Royal Family's wills kept secret?

Following Prince Philip's death last year, Sir Andrew McFarlane, President of the Family Division of the High Court, ruled that the the Prince's Will should be sealed for a period of 90 years. The ruling followed a secret hearing which the media were not told about and barred from attending. Sir Andrew McFarlane said that he initially thought that “the fact that the application had been made should be publicised and that the hearing(s) should be in public”.

However, the only parties permitted to attend the hearing were the executor of Prince Phillip’s estate, a subsidiary of the Queen’s private solicitors and the then Attorney General, Michael Ellis QC.

The Prince's executor and Attorney General were able to persuade Mr McFarlane that the hearing should be conducted in private, stating that “only the Attorney General can speak, as a matter of law, to the public interest”.

McFarlane said “there was, legally, therefore no role for those who might represent the media at a hearing (public or private) in putting forward any contrary view of the public interest”.

In November 2021, the Guardian sought permission to appeal against the decision, arguing that the High  Court had failed to properly consider whether the press should be allowed to attend the hearing or make representations and that this constituted a serious interference with the principle of open justice, meaning the case should be reheard. Permission to appeal was granted by Lady King.

She said that the argument that Mr McFarlane “erred in law in denying the media an opportunity to make submissions, or at least attend and hear submissions, as to whether the substantive application…..should be heard in private”, had a real prospect of success.

Permission to appeal was also granted on two other grounds relating to whether any decision to hear the application in private “was itself wrong” and whether the High Court erred by finding that the Attorney General “was the only person who is recognised by public law as being entitled to represent public interest in a court of justice”.

The sealing of Royal Wills has been a convention for over a century, following the death of any senior member of the Royal Family.  It means that unlike most wills which are granted probate, it will not become a public document and will not be open to public inspection.

In his ruling, Mr McFarlane revealed that he, as the president of the Family Division of the High Court, is the custodian of a safe containing more than thirty envelopes, each containing the sealed will of a deceased member of the Royal Family.  A list of those wills was published in November 2021.

The privacy of royal wills will now be considered by the Court of Appeal following the newspaper’s successful application.

Is a Will a private document?

The general rule in England is that a will is a private document, during the lifetime of the testator, who is the person who made the will. 

However, once they pass away, the general rule is that a will becomes a matter of public record and it is possible to search for the wills of deceased people in an online register. 

The Royal Family have not been subject to the same rules in the past, as the wills of senior members have been kept private, but that is now open to challenge. It will be very interesting to see whether the Court of Appeal feels that it would be in public interest for the will of Prince Philip to be made public. 

If you need to make a will, or if you need advice about how to obtain probate once someone has died, our team of experts would be very happy to assist you. Contact one of our experienced lawyers today.