The Royal Family in modern times live very public lives. Core members seem to have been bred in captivity, like exotic fish in an open aquarium, some of whose waters are murkier than others, but almost all of which will sooner or later be publicly visible.
But not their wills – or at least not for a very long time. Instead, they are sealed up, and locked away in a special safe, under a longstanding practice discussed and explained in a recent case.
The judgment has been published: Re: The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh  EWHC 77 (Fam). But everything else about the case has been shrouded in secrecy.
While the judgment is a welcome dose of transparency, the extremely one-sided way the hearing was conducted – with the application to hear the case in private itself being heard in private, and with no one to represent the interests of anyone who might legitimately oppose such an application (such as a historian or royal biographer) – is a matter of some concern.
[NB. This post has been updated to include subsequent developments.]
What is the case about?
As its name suggests, the case concerned the will of Prince Philip, who died on 9 April 2021. The executor of his will (the person nominated to administer his estate) is a company, Farrer and Co Trust Corporation. They applied to the court to have the prince’s will ‘sealed up’, and for an order that no copy of the will should be made for the public record and that the value of the will should be excluded from the grant of probate.
So no one would be able to find out how much the prince’s estate was worth, or to whom he had left his property.
What happens normally?
The wills of ordinary members of the public – ‘commoners’ like you and me – are routinely deposited in a public archive, once probate has been granted, under legislation dating back to 1857. It is now provided for by section 124 of the Senior Courts Act 1981, which states that such wills, once deposited, must be ‘open to inspection’.
(Probate, by the way, is the formal process of proving, or authenticating, wills. A will is a formal expression of a person’s intentions as to the fate of their estate, ie all their worldly goods, after their death. There are lots of interesting cases about what does or doesn’t constitute a will, or whether they are genuine, but this is not one of them.)
The publication of wills serves a number of beneficial purposes, as the judgment in this case acknowledges. For example, if the deceased person had debts, their creditors may wish to make a claim for repayment against the estate. Publication can also prevent fraud. It can alert a dependent who might wish to pursue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that they are someone for whom the deceased ought to have made some financial provision. And in the case of famous people, there is a historic and journalistic interest in knowing what they left behind.
However, the default position in favour of public access to a will can be reversed in a particular case if a judge rules that such inspection would be ‘undesirable or otherwise inappropriate’. That is provided for by rule 58 of the Non-Contentious Probate Rules 1987 (‘NCPR’).
Why are royal wills different?
In the case of senior members of the Royal Family, a practice has grown up over the last century or so for their wills to be sealed up and locked away, out of public sight, for an indefinite time. This has been done by a court order following an application made to the President of what is now the Family Division (but which before 1971 was the Probate, Divorce and Admiralty Division) of the High Court, in his or her capacity as Head of Probate.
The current President is Sir Andrew McFarlane, who was the judge in this case. But as he explained in his judgment:
‘It appears that such applications have always been heard in private and have invariably been granted. No known record exists of any judgment or statement of reasons that may have been given by my predecessors on previous occasions.’(Para 4)
The practice has been privately discussed in three previous cases, but only after the sealing orders were made, in accordance with a procedure set out in a confidential document agreed by one of Sir Andrew’s predecessors. In the first two cases, irrational and scandalous or delusional claims of illegitimate descendancy were made against the estates of the late Queen Mother and/or Princess Margaret: see Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother  EWCA Civ 56;  1 WLR 2327 and In re Benmusa (No 3)  EWHC 966 (Fam). (Had they turned out to have any substance, some hasty rescripting of The Crown on Netflix might have been called for.) In the third case, In re His Royal Highness the Duke of Windsor (Deceased)  EWHC 2887 (Fam), 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, and was granted by the then President, Sir James Munby, for the sole purposes of those archives and to no one else. (However, it demonstrates that someone with a legitimate claim may be permitted to inspect an otherwise sealed up royal will.)
In this case, involving the will of Prince Philip, the President decided to give an open and public judgment in order to describe the legal and historical context and to give his reasons for granting the executor’s application. In this way, he was effectively putting the whole practice and the reasons for it on the public record. Given the potential constitutional significance of the case, that can only be a good thing.
Who can apply?
Not all royals can or need apply. In recent times the convention has been limited to the children of the sovereign or a former sovereign, the consort of the sovereign or former sovereign, and a member of the Royal Family who at the time of death was first or second in line of succession to the throne, or the child of such a person. In earlier times, though, applications seem to have been made and accepted on behalf of lesser royals.
Moreover, as the judge explained :
‘It has long been established that the sovereign’s will does not need to be proved by a grant of probate (see In the Goods of His late Majesty King George III, deceased (1822) 1 ADD 255, 162 ER 89 and In the Goods of His late Majesty King George III (1862) 3 SW & TR 199, 164 ER 1250). This does not apply to any other member of the Royal Family, whose estates fall to be administered in accordance with the ordinary probate rules, including the court’s power under NCPR, r 58 to direct that the will or other document filed with the grant of probate shall not be open to inspection.’(Para 10)
The earliest royal to have their will sealed up on the order of the President of what was then the Probate, Divorce and Admiralty Division, was His Serene Highness Prince Francis of Teck, the brother of King George V’s wife, Queen Mary. Prince Francis died in 1910. Since then, there have been quite a few more, as the judge explained:
‘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. I can confirm that the earliest such envelope is labelled as containing the will of Prince Francis of Teck. The most recent additions were made in 2002 and are, respectively, the wills of Her late Majesty Queen Elizabeth, The Queen Mother and Her late Royal Highness The Princess Margaret, Countess of Snowdon.’(Para 14)
Why should the will be sealed?
In the absence of any public judgments in the earlier cases, we don’t know why the orders for sealing of royal wills were made in the past. It just seems to have been assumed that their publication or inspection would be ‘undesirable’ or ‘inappropriate’ under NCPR r 58.
In this case, the judgment records the arguments put for the executor, which the Attorney General, representing the public interest, seems to have fully supported. These included such things as protecting the privacy and dignity of the sovereign and the institution of the monarchy, protecting the Royal Family from undue intrusion into private matters, the lack of any real possibility of fraud or unsatisfied creditors, and the need to continue to follow what had been a consistent practice for over 75 years. Moreover, anyone who might have a genuine need to inspect the will could always apply to the court.
All in all, it was said, ‘the public interest strongly favoured not permitting inspection of the will’. The same public interest also favoured withholding the value of the estate from the grant of probate.
The judge agreed. He said, at para 51, that even though the test under NCPR r 58 creates an exception to the default position in favour of openness, it does not require there to be ‘exceptional’ circumstances. The words ‘undesirable’ and ‘inappropriate’ were not qualified by the addition of an adverb such as ‘wholly’ or ‘significantly’ and should be given their ordinary meaning. The hurdle was not an especially high one.
He accepted the statement of the Attorney General that the public interest (which it was his role to represent in this case) strongly favoured not permitting publication of the will and details of the estate. That was ‘evidence of great weight’ on the question, said the judge. Moreover:
‘In addition to taking due regard of, and affording substantial weight to, the Attorney General’s evaluation of the public interest, separately conducted my own assessment of the relevant factors for and against the application before I concluded that it was both undesirable and inappropriate for the will and accompanying documents to be open to public inspection.’(Para 54)
The unique status of the sovereign as head of state meant there was an ‘inherent public interest in protecting the sovereign’s dignity, and that of the close members of her family, in order to preserve their position and fulfil their constitutional role’. That interest extended to close members of the Royal Family.
For how long should it be sealed?
Although the judge agreed that the Prince’s will, like others before it, should be sealed up and locked away in the President’s special safe, he did make a ruling about how long that should happen for. In previous cases involving the sealing of royal wills, there does not seem to have been any decision as to when or even whether they might be made public.
He rejected a suggestion that the period of secrecy should be as long as 125 years, but said 90 years was ‘proportionate and sufficient in all the circumstances’. He made further orders for what should happen then (or in the event of any earlier successful application to un-seal a royal will):
‘It follows that I will direct that the orders that have previously been made for the sealing of royal wills are to be taken to be varied by the order of this court so that on the expiration of the period of 90 years following the date upon which probate for any such will was granted, 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 – but not yet. Allowance was made for the matter to be appealed, but subject to that, there will eventually be a list. The safe will be locked but we’ll know what’s inside it.
What about the media?
Ordinarily, there is a balancing exercise to be struck in court decisions about publicity, between claims of privacy and confidentiality on the one hand, supported by Article 8 of the Human Rights Convention, and freedom of expression under Article 10 on the other. The public interest is served by considering those or other competing rights and deciding where the balance lies. In this case, however, the Attorney General was simply assumed to represent the public interest and no competing voice, no alternative point of view, was represented. Neither Article 8 nor Article 10 are mentioned in the judgment.
It is not just the media who might have opposed the application, had they known about it. Interest in the late Prince’s will and estate might be expressed by any historian of the period, or a biographer interested in getting as complete a picture of their subject as possible – or indeed (as we have seen above) a palace archivist. On the other hand, vulgar curiosity about private lives of the royals might not be thought sufficient.
The judge was fairly dismissive of any such public ‘interest’ or curiosity:
‘I accepted the submission that, whilst there may be public curiosity as to the private arrangements that a member of the Royal Family may choose to make in their will, there is no true public interest in the public knowing this wholly private information. The media interest in this respect is commercial. The degree of publicity that publication would be likely to attract would be very extensive and wholly contrary to the aim of maintaining the dignity of the Sovereign.’(Para 59)
So that’s that then.
A very private hearing
When the application to seal up the Prince’s will was first made to the court, the executor applied for the case to be heard in private. Moreover, it was urged, the application for the proceedings to be heard in private should itself be heard in private. That would mean that if, as indeed happened, the judge agreed to hear the case in private, no one outside the doors of the court would know that it was going on. (And indeed, no one would have known anything about it if the judge had not afterwards published his judgment.)
Although at first the judge had been inclined to hear the matter in open court, he was persuaded (again by both parties) to change his mind – for much the same reasons as those on which he ultimately ruled in favour of preventing publication of the Prince’s will:
‘In short, I accepted that to have a series of announcements, hearings and then a judgment would be likely to generate very significant publicity and conjecture over an extended period, and that this would be entirely contrary to the need to preserve the dignity of the Sovereign and protect the privacy surrounding genuinely private matters. The publicity would, therefore, in part, defeat the core purpose of the application. I also accepted the argument that only the Attorney General can speak, as a matter of public law, to the public interest, and that 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.’(Para 64)
The idea that ‘only the Attorney General can speak, as a matter of public law, to the public interest’ was based on a case called Gouriet v Union of Post Office Workers  AC 435;  UKHL 5. That was a case where someone else tried to bring an action, in the public interest, against a union that was threatening to disrupt postal services for political reasons. The Attorney General declined to allow it to proceed, and the court agreed, on the basis that he alone could represent the public interest.
Nonetheless, it is common in cases where the courts make decisions affecting the privacy of hearings or to apply reporting restrictions, to allow members of the press or others affected to make representations opposing or modifying the restrictions. That did not happen here. Perhaps there is no legitimate expectation that it should. Nor, to be fair, am I aware of anyone since publication of the judgment, complaining that it should have happened, or that the hearing should have been in public.
Even so, for an adversarial legal system, this verges on a stitch-up. Or perhaps that should read ‘seal-up’. To deny any representation, or not to invite it, from anyone representing openness, transparency and freedom of expression seems extremely odd.
On the other hand, while the application is not a novel one, the idea of giving a public judgment and stating the reasons for making the order is a novel development. For that the President of the Family Division – who incidentally has been conducting a lengthy consultation on transparency in the family courts – surely deserves credit.
UPDATE – 21 November 2021
The Guardian has applied for permission to appeal against the decision of Sir Andrew McFarlane P:
“Legal action against the attorney general and the Queen’s private lawyers has been initiated over a decision to ban media organisations from a court hearing about the Duke of Edinburgh’s will.
The Guardian is seeking permission to argue that the high court’s failure to properly consider whether the press should be allowed to attend the hearing or make representations constitutes such a serious interference with the principle of open justice that the case should be reheard.”– see Prince Philip’s will: legal battle launched over media exclusion from hearing (18 November 2021)
On 21 November the Guardian’s sister newspaper, The Observer, published a somewhat speculative piece by columnist Catherine Bennett, under the title What fresh hell must Philip’s will contain to make the royal family look any worse?
We will, of course, report what happens in the appeal. But it’s worth pointing out that the grounds of appeal apparently relied upon relate to the transparency of the process of hearing the case, not to the substantive question of whether or not the will should, indeed, have been made public. So Ms Bennett may yet be disappointed in her hopes of scandalous revelations.
UPDATE – 24 November 2021
In his judgment dated 16 September 2021 Sir Andrew McFarlane mentioned his intention to publish, for reasons of transparency, a list of all the royal wills currently sealed up and stored in the special safe in his custody. He did not do so at the time, in order to allow the parties time to seek permission to appeal. Today it was announced, via the Judiciary website:
“In the absence of any such applications having been filed by either party, the wills currently held in the custody of the President of the Family Division are named in the annex to the judgment.”
It is tempting to infer from this that the executor and Attorney General (who are essentially on the same side) are more concerned to focus their energies on resisting the application of the Guardian, than on attempting to stem the tide of transparency to which the judge has already subscribed.
The Annex is published here: Annex 1 to judgment NOV 2021 FINAL
UPDATE – 24 January 2022
The Guardian have now been granted permission to appeal by the Court of Appeal on the papers.
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Featured image: The giant screens of Piccadilly Circus paying respect to His Royal Highness Prince Philip the Duke of Edinburgh with the announcement of his death. London – 10th April 2021, via Shutterstock.