The recent decision confirming that the late Prince Phillip’s will will be kept sealed has opened up the debate about why the rest of us are required to make our last will and testaments public documents after our death.
A long-standing feature of certain newspapers has been a regular column giving summaries of the wills of recently deceased famous and wealthy persons, which often feels like an infringement on the privacy of those individuals and their loved ones. Disclosure of wills to the public lays bare the closest emotional ties that the testator will have formed during his or her lifetime. Who can forget William Shakespeare’s bequest to his wife of his “second best bed”?
The obvious argument for the publicity of wills is that it can alert parties to the existence of an estate from which they might expect to derive some financial entitlement, whether that be as a beneficiary or a creditor of the deceased. The legal device of sealing a will has been relatively common practice for royal wills and the Court’s power here is “concerned with considerations of privacy”. Applications for sealing non-royal wills are rarely successful, so why is it that only royals are entitled to this heightened level of privacy?
The debate about public disclosure centres on balancing the competing interests of privacy and transparency. Whilst the UK provides complete testamentary freedom, it also provides certain individuals the right to make a claim on an estate where they have been left out of the will. The last year has seen a dramatic increase in the number of such claims being made, some of which no doubt would not have been made had the will not been a public document.
The effect of probate
Probate gives someone the legal right to deal with a deceased person’s estate. If probate is needed to administer your estate after you die, then your will becomes a public document, and anyone can apply for a copy. If your estate is worth very little and probate is not required, your will remains a private document and only those named as executors and beneficiaries will be privy to its contents. The government’s online probate record allows you to search for and apply for copies of wills of those who have died since 1857. It is therefore important to bear this in mind when you write your will, and to try avoid including any information that you wish to keep private. That being said, wills by their very nature can be very personal and sensitive documents, so this can represent a challenge.
The most common way of keeping personal information private is to use a trust in your will and appoint trusted family members and/or professionals as trustees. You can then leave a separate private document, known as a “letter of wishes” which can refer to specific bequests and individuals, to guide your chosen trustees.
However, not everyone is comfortable with the concept of a trust. Whilst your trustees will have a fiduciary duty to act in the best interests of the beneficiaries, they will not be legally bound by your letter of wishes. Compared to specific bequests and distributions contained within the will itself, the trust can be perceived as providing less certainty.
The UK’s Trust Register excludes trusts created by wills for the first two years following the testator’s death. If the trust is still in existence after two years (i.e. all the assets have not yet been distributed), then it will be required to register if it meets the requirements (see our note). Despite the recent expansion of those who can access the register, the Trust’s Register is not publicly accessible.
An alternative to a will trust is to settle a trust during lifetime, which can continue for future generations/beneficiaries, unaffected by the death of the settlor. This could allow the settlor to effectively “test out” the trust and the chosen trustees during their lifetime. Tax considerations will remain central and bespoke advice should be obtained. For a non-domiciled individual approaching the 15-year deemed domiciled mark, settling an offshore discretionary trust is a popular and efficient tax planning technique which can double as a sensible and practical estate planning mechanism. It should be noted that a trust created during lifetime like this may be obliged to register on the TRS (should it meet one of the relevant requirements).
How we can help
At Winckworth Sherwood we can help guide you through these estate and tax planning considerations to find a tailored solution that works for you. Whether that means setting up an onshore or offshore trust, drafting your will and/or letter wishes, or just helping with your tax queries, we are here to help.