Can the terms of my Will be kept secret after I die?

You may have seen the recent news that the Duke of Edinburgh’s Will is to remain secret for at least 90 years in order to protect the “dignity and standing” of the Queen.

Apart from possibly igniting immense curiosity as to how Prince Philip’s Will could damage the Queen’s dignity and standing, you may also be wondering whether your own Will could be afforded the same level of privacy after your death.

Can the terms of my Will be kept secret after I die?

The answer, in short, is ‘no’. The norm is for an individual’s Will to be open to public inspection at the point where a Grant of Probate is issued. The Grant of Probate is issued by the Court and confirms the authority of the executor appointed by the deceased to distribute the deceased person’s assets in accordance with the Will.

There is, however, a solution available if you are minded to privately record how your estate should be dealt with after your death.

Letter of wishes – a way to privately record how you want your estate to be dealt with

Although a Will is a public document at the point a Grant of Probate is issued, an individual can create a separate document called a ‘letter of wishes’ which, although read alongside the Will by your executors and trustees, will not be open to the public.

A letter of wishes is a useful way to record an individual’s private views on how the executors and trustees of their estate should act and to provide any confidential or sensitive information that needs to be taken into consideration when dealing with the estate. For example, there may be particular reasons why a beneficiary should not receive an inheritance or why another beneficiary should be prioritised over others. Although a letter of wishes is not legally binding, the executors and trustees must consider it when deciding how to deal with the estate and, in practice, a letter of wishes is usually followed.

Your Will must be drafted correctly to maximise the benefit of a letter of wishes

In order for a letter of wishes to be of maximum benefit, you will need to carefully consider how your Will is drafted. The use of a discretionary trust within your Will allows you to set up a trust on your death with named beneficiaries or a defined class of beneficiaries (for example, the ‘class’ could include your children, grandchildren etc.). The trustees of a discretionary trust have wide powers in relation to how the trust assets should be managed, who out of the named or class of beneficiaries should benefit and to what extent, any circumstances the trustees should take into consideration before transferring assets to a beneficiary and whether assets should only be transferred for particular purposes, for example, for the education of a beneficiary.

The terms of the discretionary trust are set out in your Will and basically confirm the beneficiaries who could potentially benefit from the Will and the wide powers the trustees have to manage the trust. However, no detail is provided in the Will about exactly who should benefit, when they should benefit or why. It is your letter of wishes which sets out your views in relation to these questions (and more) and of course, as mentioned above, although your Will is published once a Grant of Probate is issued, your letter of wishes is not.

Within your letter of wishes, you can also suggest to your executors and trustees that gifts to certain individuals should be made, instead of naming them specifically in your Will.

Issues to watch out for

The letter of wishes can be marked as confidential and so your executors and trustees will usually keep it as such. However, you should note that a disgruntled potential beneficiary could ask to see a letter of wishes. The executors and trustees cannot simply refuse the beneficiary as they have duties to consider what serves the best interests of the trust. If this scenario were to arise in the future, it would be advisable for the executors and trustees to obtain legal advice to navigate this complex area of law before deciding whether to share the contents of the letter of wishes with a beneficiary or beneficiaries. However, this will not affect the general privacy of the letter of wishes – it will still remain unpublished and not in the public domain.

What you can do

There are many considerations to take into account when deciding how best to deal with your affairs on death. Here, at Harrowells, we are specialist advisors in drafting Wills, letters of wishes and other legal documents relating to later life planning and would be pleased to discuss your personal circumstances with you to ensure you have the appropriate documentation in place. We can also provide support and advice to executors and trustees who are administering estates and trusts and offer a professional executor and trustee service for our clients who require an independent expert to take on these roles.