Residential property
27 Sep 2021 News

Privacy and Wills following a death, following on from the decision regarding Prince Philip’s Will

As reported in the press in the last week, Sir Andrew McFarlane, President of the Family Division in the High Court of Justice, has ruled that Prince Philip’s Will should not become a public document. While this is understandable given the profile of the Royal family, it does go against the grain since in England, most Wills become public documents as part of the Probate process.

The Scottish equivalent to Probate is Confirmation and, as is the case in England,  part of the process involves lodging the Will of the deceased with the court. When Confirmation is granted, the Will is registered in the Court books and is then accessible by the public on request. This means that anyone can request a copy directly from the court, including the press or as is often the case, a disappointed beneficiary. So, if Confirmation is needed to deal with an estate, it is not possible to avoid the Will becoming public.

For various reasons, an individual may not want the contents of their Will and details of the beneficiaries (often including their full names and addresses) to become public knowledge. In such cases, there is still a mechanism for retaining a degree privacy, through the use of a Trust in your Will. The Will can contain very general provisions and simply set up a trust to receive the assets owned by  the deceased. When the Will is drafted, a private Letter of Wishes to the trustees can also be put in place which contains the detail of how the individual would like their estate to be dealt with, who the beneficiaries should be etc. While the Will needs to be submitted to the Court for Confirmation to be granted, the Letter of Wishes does not.  Equally, beneficiaries do not have an automatic right to have sight of the terms of a Letter of Wishes, although it is becoming more common for them to be given a copy in certain situations.

There can be many reasons to use trusts in a Will and privacy is increasingly becoming one of them. If you are concerned with the contents of your Will being published, please get in touch  with a member of our Private Client Team to discuss your options.

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