In two previous posts we’ve discussed the fate of the late Prince Philip’s will. Following an application by his executors, the court made an order sealing it up for 90 years. There were questions about how transparent those proceedings were, but the basic rule that his will might otherwise have been open to public inspection was not in doubt.
The same is not true of the late Queen’s will. That’s because, under a long established common law rule, the Sovereign’s will does not require to be proved by the grant of probate, and the courts have no jurisdiction over the administration of the sovereign’s estate.
The right to inspect a person’s will derives from statute. Under section 124 of the Senior Courts Act 1981 provides that
“All original wills and other documents which are under the control of the High Court in the Principal Registry or in any district probate registry shall be deposited and preserved in such places as may be provided for in directions given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005; and any wills or other documents so deposited shall, subject to the control of the High Court and to probate rules, be open to inspection.”
The reason a will would be under the control of the court is because it must first be “proved” by a grant of probate. But the Queen’s does not need to be so proved.
In a case dating from 200 years ago it was decided that, unlike his or her subjects, or indeed other members of the royal family, a reigning Sovereign’s will after their death does not need to be proved by a grant of probate, nor do the courts have any jurisdiction to inquire into its validity or consider the administration of the sovereign’s estate.
According to Sir John Nichols, sitting as the Judge of the Prerogative Court in 1822, in a case called In the Goods of His late Majesty King George III, deceased (1822) 1 ADD 255; 162 ER 89:
“Now the history of the wills of Sovereigns from Saxon times-from Alfred the Great down to the present day, has been diligently searched and examined, but no instance has been produced of probate having been taken of the will of any deceased Sovereign in these Courts, much less of its having been contested here against the reigning Sovereign.”
His decision that courts had no jurisdiction to consider any application involving the Sovereign’s will was affirmed, when an attempt was made to reopen the same case forty years later, by Sir Cresswell Cresswell, sitting in the court of probate (1862) 3 SW & TR 199; 164 ER 1250.
It follows that – however fascinating it might be to speculate on how the late Queen may have disposed of her royal fortune (see, for example, Fortune, Queen Elizabeth II just died. Here’s what will happen to her $500 million fortune or i-news, What happens to the Queen’s wealth? Mystery surrounds her fortune as Charles inherits her private estate) – no copy of her will shall ever be available for inspection at the court, in the same way as that of any of her subjects. And even if it were, it would undoubtedly be sealed up and hidden from such inspection for a period of at least 90 years following the decision of the President of the Family Division, Sir Andrew McFarlane in the case of the late Prince Philip’s will. (See Re: The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam), as affirmed by the Court of Appeal in Guardian News and Media v The Executor of HRH The Prince Philip, Duke of Edinburgh [2022] EWCA Civ 1081.)
You can read all about that in these previous posts:
Why can’t we read Prince Philip’s Will?
Guardian loses appeal over “secret” hearing about Prince Philip’s will
We have a small favour to ask!
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Featured image: The giant screens of Piccadilly Circus paying respect to Her late Majesty Queen Elizabeth II following the announcement of her death. London, September 2022, via Shutterstock.