08 August 2017

Private client news - summer edition: wills and privacy

Dora Clarke

Partner | UK

In the debate over the right to privacy versus the ‘public right to know’, public (or at least press) opinion has swung firmly in favour of the latter. But privacy has long been on the losing side where wills are concerned. Because wills are a matter of public record (once probated), anyone can get a copy of anyone else’s (proved) will and grant of probate by means of a simple on-line application to the Probate Registry and payment of a £10 fee.

Moreover the grant will specify the size of the (UK) estate, and that is part of the basic information that comes up online without even having to order a copy of the will. Only Royalty are exempted (and Lord Mountbatten – presumably deemed at the time to have been quasi-royal).

In the US, information about a will (or lack of a will) emerges at a very early stage and the death of a high profile individual immediately triggers a feeding frenzy of press reports. In the UK though, a will only becomes public when probated, and it can only be probated once an inheritance tax return has been put into HMRC. A simple estate might be probated within a few months, but a complex one will take much longer.

Nevertheless, irrespective of the timing, there is a real issue as to whether it is right that the general public should be able to find out so easily who benefits from the estate and what the estate is worth. The view for many years has been that there is a legitimate public interest, recognised by the law, in free public access to Grants of Representation and to the contents of wills submitted to probate, and also in the value of the estates covered by the grant.

Certainly, the charity industry would argue for the importance of knowing the value of an estate from which they benefit in order that they can make sure that they get their proper share of it. Similarly, a claimant, or a prospective claimant, against the estate will want to know the size of the estate to gauge whether or not it is worthwhile their making a claim. Nevertheless, it is viewed by some as something of a burglars’ charter and in extreme cases there can be concern about kidnapping, quite apart from the instinctive dislike that most people would have of their neighbours knowing about their financial affairs.

However, anyone with a serious concern to keep their affairs private can take steps to avoid publicity. The Grant of Representation refers only to the value of the estate in the UK. Keeping your financial assets offshore (perhaps in the Channel Islands) means that a grant of probate would need to be extracted there as well. The will would still be a public document but at least (depending on the jurisdiction) the Grant would make no mention of the value. Alternatively, leaving your estate to a discretionary trust will mean that the details of who gets what do not become public knowledge, though the value would still be public. A combination of the two could achieve pretty well complete privacy against the press and the nosy neighbour. Mechanisms such as secret trusts can also be used in certain circumstances, although these are much more difficult to get right.

Privacy can of course be taken too far. You do need to make sure that your family and your executors know where your will is kept. There are a lot of wills in strong rooms throughout the country that have been lying there for many years and that are dated later than the wills that were actually proved, simply because no-one knew they were there. There is obviously scope for chaos if a will comes to light years after an earlier one has been probated and the estate wound up. In the UK there is no official will registry and unfortunately the system depends on the expectation that we tell our families in advance how they need to go about claiming their inheritance. So if your will is stored by Withers, do make sure that someone knows that we have it, and please do tell us if you change address or if you have made a later will elsewhere.