In a series of earlier posts we have discussed the transparency, or lack of it, in the way the courts deal with wills left by deceased members of the Royal Family.

In the case of the late Queen Elizabeth II, her will was not even required to be proved by a grant of probate, so the courts had no jurisdiction over it and no question arose of anyone being able to inspect it afterwards. But in the case of her late consort, Prince Philip, an application was made to the court for a very private hearing to be conducted, in the course of which an order was made “sealing up” his will and preventing it being subject to public inspection in the same way as an ordinary commoner’s will would be (under  section 124 of the Senior Courts Act 1981.)

You can read the full story about Prince Philip’s will and the efforts made to prevent anyone even knowing about the hearing until afterwards, and what happened next, here:

In this post, we revisit a matter pertaining to royal wills more generally, namely the arrangements for unsealing a will that has been sealed up on the order of the court because of the need to protect the confidentiality of testamentary dispositions by members of the Sovereign’s own family.

Sealing royal wills

In his judgment in Re: The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam), Sir Andrew McFarlane, President of the Family Division, explained how the practice of sealing up the wills of senior members of the Royal Family had developed over a period of more than a century, and that: ‘As President of the Family Division I am now custodian of a safe in which there are over thirty envelopes, each of which purports to contain the sealed will of a deceased member of the Royal Family.’

In previous cases involving the sealing of royal wills, no decision appeared to have been made as to when or even whether they might be made public. That seemed unsatisfactory, and having heard argument on the matter (albeit only on behalf of the late Prince’s executors and the Attorney General, because the hearing was in private) he decided that the appropriate period was 90 years. He then outlined the process to be followed, namely:

‘the will is to be opened in private, at the direction of the then President of the Family Division, so that its content may be inspected by the Sovereign’s Private Solicitor, the Keeper of the Royal Archives, the Attorney General, and by the any of the deceased’s personal representatives who may be available. The physical process of un-sealing is to be conducted by a professional archivist from the Royal Archives (or such other professional as the Keeper of the Royal Archives appoints) to ensure that the document and its seals are properly preserved.’

(para 76)

He also ruled that the court should now publish a complete list of all the sealed royal wills in the special safe. That was done in an  Annex 1 to judgment released a couple of months later. The main judgment was then subject to an appeal, brought on behalf of The Guardian newspaper, challenging the way the media or public were not even allowed a say in whether or not the hearing should have been conducted entirely in private; but the appeal was dismissed by the Court of Appeal.

Unsealing: a delicate dance

That brings us to the present day, when the President has now issued judicial guidance on The procedure for unsealing 90-year-old Royal wills. In fact this goes further, because it deals with continued storage of the sealed-up royal wills in the President’s safe, as well as setting out the formal steps to be taken in the process of unsealing the will and making it available for public inspection.

What’s clear is that, even after spending 90 years in the vault, a sealed-up royal will does not automatically become public. Instead, there is a delicate dance of arcane officialdom in which personages with grand-sounding titles get to have a sneak preview of the newly unsealed will and decide whether it should be subject to the vulgar gaze of the common people. Paraphrasing the guidance, the steps of that dance go as follows:

Step one: the President writes to the Sovereign’s Private Solicitor to inform them that a Royal will previously sealed by the Court has fallen due for consideration. They in turn may notify any of the deceased’s personal representatives (if they are still alive, presumably). The notice is also copied to the Keeper of the Royal Archives and to HM Attorney General.

Step two: the opening of the envelope containing the will (the great unsealing) takes place in private before the President, the Sovereign’s Private Solicitor, the Keeper of the Royal Archives, HM Attorney General, and any of the deceased’s personal representatives who may be available, and its content is then inspected by them. (With the President’s approval, any of those entitled to be present may nominate someone else to stand in for them.)

Step three: the sealed envelope shall be opened by a professional archivist from the Royal Archives (or such other professional as the Keeper appoints) ‘in a manner consistent with the highest curatorial standards with a view to preserving the seal, the envelope and its contents in pristine condition’.

Step four: No copy of the will is to be made at this stage, and the original ‘shall not leave the custody of the President’.

Step five: Those present may take notes, but only on condition that they remain confidential to those parties allowed to be involved in this process, and that they will be destroyed if the President decides to order the will to be resealed.

Step six: the Sovereign’s Private Solicitor advises the Sovereign of the contents of the will and takes instructions.

Step seven: Certain other persons may also be consulted, including any surviving beneficiaries, and relatives of the deceased likely to be affected. Arrangements may be made for such persons also to view the unsealed will.

Step eight: the Sovereign’s Private Solicitor writes to HM Attorney General, indicating what instructions have been received and observations made, and invites them to ‘form a view’ as to whether or not the will should be made available for public inspection.

Step nine: the President asks everyone who’s been consulted whether they think the unsealed will should be open to public inspection and, if so, on what terms.

Step ten: Even if everyone consulted says Yes, the President still has a veto. But if they accept the recommendation, they then make arrangements for the original will, envelope and seals to be surrendered to the Royal Archive for safe keeping and academic research, and for a copy of the will to be delivered to the Probate Registry.

Step eleven: However… if any of the parties consulted on the matter thinks the will should not be made public, they must apply to the court in accordance with the original procedure to have the will sealed up again. (Back to square one, in other words.)

Private: keep out

What’s clear from the above breakdown of the procedure ordained by the President is that at no point until the will is delivered to the Probate Registry would any member of the public or press or have any say in the process, let alone see the will or learn of its contents. The whole process is shrouded in secrecy. And it’s clear from the judgment in the Prince Philip case that the decision to give a public judgment was exceptional, and that in future the whole procedure of sealing the will is going to be dealt with in private, with a private judgment:

‘I am grateful to the Attorney General for suggesting that in future the court should, as a matter of course, give a ‘closed judgment’ which, if there is a need to do so, would record the court’s evaluation of any specific matters relating to the content of a will or other documents that may arise in a particular case. I accept that, to avoid conjecture in the event that a closed judgment were given in some cases but not in others, a closed judgment should be given on every occasion.’

(Para 66)

Finally, although the procedure laid out in the guidance is designed to deal with the end of the 90-year period dating from probate, presumably the same process would be adopted in the event that an earlier application was made to the court to unseal the will, for example by someone claiming to be a beneficiary or entitled to some provision under the Inheritance (Provision for Family and Dependants) Act 1975 – however fanciful such a claim might seem. Not so fanciful that it hasn’t happened: the President referred to two earlier cases in which ‘scandalous’ or ‘irrational’ claims of illegitimate descendancy were made against the estates of the late Queen Mother in Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother [2008] EWCA Civ 56; [2008] 1 WLR 2327 and Princess Margaret in a series of judgments culminating in In re Benmusa (No 3) [2017] EWHC 966 (Fam). And in another case an application to unseal the will of Prince Edward, Duke of Windsor, was made by the Librarian and Assistant Keeper of the Queen’s Archives: In re His Royal Highness the Duke of Windsor (Deceased) [2017] EWHC 2887 (Fam). So, bearing in mind the turbulence attending the lives of certain current members of the Royal Family, it seems possible that another such application may not be entirely inconceivable. We say no more for now. Only that, if it happened, we have no confidence the matter would be subject to much in the way of public scrutiny.

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Featured image: Photo of Buckingham Palace gates by Михаил Лазаренко (Mikhail Lazerenko) via Pexels.