Private wills: is Johnson v HM Attorney-General the new normal or an outlier?

In England and Wales after a person's death their will is open to public inspection. Certain Royal wills, such as those of the late Queen Elizabeth and the Queen Mother, have been sealed (i.e. not made public). However, the High Court's recent judgment in Johnson v HM Attorney-General breaks new ground as the first reported instance of a non-Royal will being sealed.

Frank Cowley died on 20 March 2023. Previously known as Freddie Scappaticci, the deceased is alleged to have been a leading member of the Provisional Irish Republican Army during the Troubles, and more particularly its internal discipline unit known as the "Nutting Squad", dealing with suspected informers. The deceased is accused of also having been an agent for the British Government, codenamed "Stakeknife". Press reports alleged that, whilst working for both the IRA and the British Government, the deceased was responsible for the torture and murder of multiple alleged informers. As a result, the deceased received continued death threats during his lifetime.

The deceased's personal representative, whose identity remains anonymous, applied to the Court to seal the deceased's will for 70 years and that the will should not be inspected without the Chancellor of the High Court's consent. The Attorney General supported the application.  

The relevant test under Rule 58 of the Non-Contentious Probate Rules 1987 is whether, in the opinion of the Court, public inspection would be "undesirable or inappropriate".  

The applicant submitted there had been a real risk to the deceased's life prior to his death and there remains a real risk to the applicant and those named in the will that people would assume they were guilty by association.

In arriving at his decision, the judge considered the factors set out in the judgment concerning the sealing of the late Prince Philip's will. The factors in favour of public inspection are:

1. Ensuring the deceased's wishes are respected and preventing fraud,

2.    Facilitating the notification and tracing of beneficiaries, 

3.    Historic and journalistic interest, and

4.    Notifying the following groups of the death:

a.    The deceased's creditors,

b.    Those who might possess another will, and

c.    Those who might have a claim arising from the death.

The judge considered that the first two factors were not relevant seeing as the applicant intends to instruct solicitors to professionally administer the will.  As to the third factor, the judge considered there to be nothing of public interest in the will itself, as it is in fairly standard form.  Finally, given the publicity surrounding the death, the judge deemed it unlikely that any of the relevant groups would not have been aware of the death. Therefore, none of the factors supporting the will being open to public inspection apply in these circumstances.  

The judge noted that the bar for the "undesirable or inappropriate" test is not an especially high one, and made an order sealing the Will for 70 years to protect the applicant and those named in the will. 

This decision prompts the question whether we are now going to see a larger number of applications to seal wills. Will the factors set out above apply to most estates in same ways as this one? Or is this estate so unusual it will be outlier?

The courts will likely be cautious to prevent this decision leading to a slippery slope where the majority of wills become sealed and are no longer open to public inspection.

A major factor in favour of sealing the will in this case was that the death was well-publicised and anyone with a potential claim arising from the death would have been made aware. This does not apply in most cases and might have been the distinguishing factor here.  

However, does that leave us with a system where there is potentially one rule for famous people whose death makes the headlines and another rule for everybody else? And where is the line?

As matters stand, the general rule remains that wills will become public once admitted to probate.