Can you read wills made by the Royal Family?

Following the judgment in 2021 that the will of Prince Philip, Duke of Edinburgh would remain secret for at least 90 years, a judge has set out the procedure for unsealing Royal wills.

Can you read wills made by members of the Royal Family?

For over a century it has been convention that wills made by deceased senior members of the Royal Family are sealed. This means that wills made by the Royal Family will not become a public document and be open to public inspection, unlike most wills which are granted probate (pursuant to the Senior Courts Act 1981).

The convention has been around since 1910 when His Serene Highness Prince Francis of Teck, the brother of King George V’s wife, Queen Mary, sealed his will.

The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh

The convention of sealing Royal wills was recently clarified in court when an application was made for a private hearing to be conducted following the death of Prince Philip.

In the judgement of Re: The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam), the President of the Family Division, Sir Andrew McFarlane, confirmed that he was the custodian of a safe in which there are over 30 envelopes which contain the sealed will of a deceased member of the Royal Family – the earliest being the will of Prince Francis of Teck.

He explained that will sealing ‘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’, adding that it ‘has long been established that the sovereign’s will does not need to be proved by a grant of probate’, but this ‘does not apply to any other member of the Royal Family.’

In his judgement, McFarlane stated that 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’. He therefore concluded that ‘because of the constitutional position of the Sovereign, it is appropriate to have a special practice in relation to Royal wills’, and that it would be ‘both undesirable and inappropriate for the will and accompanying documents [of Prince Philip and others] to be open to public inspection.’

Though the judge agreed that Prince Philip’s will should be sealed and locked away in the President’s safe, he did also make a ruling about how long it should be sealed for. While Royal wills had previously been sealed indefinitely, the judge argued that 90 years was ‘proportionate and sufficient in all the circumstances’.

How are wills made by members of the Royal Family unsealed?

Following his judgment, Sir Andrew McFarlane has published a Procedural Note setting out the procedure for unsealing 90-year-old Royal wills to be followed by the Office of the President of the Family Division.

As well as setting out the formal steps to be taken in the process of unsealing a Royal will, the Procedural Note also explains how they should be stored:

1) Storage:

a. Any sealed Royal will (including the envelope in which it is sealed) shall be held by or to the order of the President so long as the will remains sealed. For the avoidance of doubt, this applies to any Royal will which is resealed following the procedure set out below.

b. When the will and envelope containing it are not being inspected, they shall be retained in a suitable and secure environment (e.g. a locked safe).

c. Once the President has identified which will needs to be opened in order to consider the question of whether it should be made available to public inspection pursuant to paragraphs 6 and 7 below, the original will and the envelope in which it has been stored will be retained in the custody of the President.

2) Notice of proposed review:

a. When a period of 90 years has elapsed since the grant of probate to an estate the disposition of which is the subject of a sealed Royal will, the President shall write to the Sovereign’s Private Solicitor to inform him/her that a Royal will previously sealed by the Court has fallen due for consideration.

b. A copy of that notice shall also be copied to the Keeper of the Royal Archives (“the Keeper”) and to HM Attorney General.

c. The Sovereign’s Private Solicitor may then also contact any of the deceased’s personal representatives who may be available in order to notify them.

3) Attendance at the unsealing:

a. The relevant envelope containing the will shall be opened in private before the President, the Sovereign’s Private Solicitor, the Keeper, HM Attorney General, and any of the deceased’s personal representatives who may be available, and its content shall be inspected by them.

b. The Sovereign’s Private Solicitor, HM Attorney General, the Keeper and the deceased’s personal representatives may nominate such representatives to attend in addition or in their stead. That nomination would require the approval of the President.

4) The process of unsealing:

a. The sealed envelope shall be opened in a manner consistent with the highest curatorial standards with a view to preserving the seal, the envelope and its contents in pristine condition.

b. Subject as aforesaid, the process of unsealing is to be conducted by a professional archivist from the Royal Archives or such other professional as the Keeper appoints.

5) Copying & transcribing the will:

a. No copies of the will shall be made, and the originals shall not leave the custody of the President. Written notes may be taken by those persons in attendance and approved by the President in accordance with paragraph 3(b) on condition that –

(i) the written notes shall remain confidential to the parties identified and approved by the President as per paragraph 3(b), and to anyone notified of the contents of the will in accordance with paragraph 6(b) of this procedure; and

(ii) if a subsequent decision is made by the President to reseal the will, any such written notes shall be destroyed.

6) Consultation and instructions:

a. Once the envelope containing the will has been unsealed and the will has been inspected, the Sovereign’s Private Solicitor shall advise the Sovereign of the contents of the will and shall take instructions.

b. In advance of, or in consequence of, such instructions, the Sovereign’s Private Solicitor or his/her representatives may also (at his/her discretion) contact and consult (and in so doing, may share relevant content) with:

(i) the personal representatives named in the grant of probate (if alive, or in the case of a corporate executor, still in existence);

(ii) any living beneficiary; and

(iii) any living relative of the deceased likely (upon the reasonable assessment of the Sovereign’s Private Solicitor) to be affected by publication of the will.

c. The Sovereign’s Private Solicitor may also make arrangements for such persons to inspect the original will, subject to approval of the President.

d. Following the process of consultation described above, the Sovereign’s Private Solicitor shall write to HM Attorney General, indicating what instructions have been received and observations made, and inviting HM Attorney General to form his/her view as to whether or not the will should be made available for public inspection.

7) Procedure following unsealing:

a. Once instructions have been taken and the contents of the will have been considered by HM Attorney General and by any of the parties mentioned in paragraph 3(b) above, the President shall invite representations from each of them as to whether the will should be made available for public inspection, and (if so) the terms (if any) upon which such public inspection should be permitted.

b. In the event that all notified parties conclude that the will should be left unsealed and become open for public inspection, the Sovereign’s Private Solicitor and HM Attorney General shall each write to the President to confirm this. The President shall consider the parties’ recommendation and, if s/he accepts the recommendation, shall 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.

c. If any notified party considers that in all the circumstances the will should not remain unsealed and should not be open to public inspection, that party must make an application to the Court for an appropriate Order in that regard, in accordance with the same principles and procedures as would apply to an originating application to seal up a Royal will for the first time.

Find out more

Senior Courts Act 1981 (Legislation)

Re: The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam) (BAILII)

The procedure for unsealing 90-year-old Royal wills (Courts and Tribunals Judiciary)

Images

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Publication date: 27 February 2023

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.