Can I Keep My Will Secret?
Usually, Wills are open to public scrutiny after a Grant of Probate is issued. Yet in September 2021, the High Court ordered Prince Philip’s Will to be kept secret for 90 years to protect the “dignity and standing” of the Queen. So, can an average man in the street make the same stipulation? After all, you may not want everyone to know the ins and outs of your estate and who inherits what.
Privacy and Your Will
However, you can’t keep the terms of your Will private after you die. When the Court issues the Grant of Probate, the authority of the executor(s) is confirmed, the estate is distributed according to the terms of the Will, and any Will registered with the Probate Registry becomes a public document.
That said, when a Grant of Probate isn’t required, the Will can remain private. While it’s common for beneficiaries to ask to see a copy of the Will, it’s at the discretion of the executor(s) whether they provide one, and they are only entitled to information related to them.
A secret trust can be used to conceal the identity of a beneficiary. Two types of secret trust exist a half-secret and a fully secret trust. A fully secret trust makes no mention in the Will whatsoever; a gift to a person is made in the Will on the understanding that the person passes it on to an unnamed beneficiary. This agreement is made outside the Will entirely.
A half-secret trust names the trustee in the Will but does not give the trust’s terms, including the beneficiary.
While secret trusts can be useful for maintaining privacy, certain criteria must be fulfilled. Furthermore, unless the trust is set up correctly, the secrecy surrounding this type of trust will likely complicate matters for your executors. It may lead to disputes and delays in administering your estate.
Also, if the person holding assets in a secret trust dies or loses capacity before communicating the terms of the trust to anyone else, or written evidence isn’t easily available, there will likely be issues. Recent case law has also shown a difference between intending to create a trust and informally expressing wishes in the hope that they’ll be carried out.
Role of Discretionary Trusts
Often, the motivation behind setting up secret trusts is a moral obligation. In this context, one option is to make a Will leaving assets in a discretionary trust. In terms of privacy, A discretionary trust can include several beneficiaries, giving the trustees discretion on who should benefit and when.
Letter of Wishes
As mentioned above, a letter of wishes can also be beneficial from a privacy perspective and can be used with a discretionary trust. It’s usually drafted alongside the Will and is used to add to the Will and provide context to its contents, including guidance to trustees on how they should make decisions.
Whilst it isn’t legally binding, a letter of wishes always remains confidential, which is helpful if you want to include sensitive information. And it’s also easy to change or review it.
However, your Will must be drafted correctly, especially if trusts are involved. A letter of wishes should not contain anything that could conflict with the contents of your Will. After all, it may create a strong moral obligation for the executors to follow its contents, but it’s not legally binding.
Updating and Keeping Your Documents Safe
Alongside your Will, a letter of wishes should be reviewed and updated regularly to account for any changes in personal circumstances – or preferences.
Of equal importance is where you keep these documents. Quite apart from the safety aspect (risk of damage and so on), it’s vital that your executors can easily find your Will and letter of wishes. In 2019, Lloyds failed to pass on over 9,000 Wills of deceased customers, leading to hundreds of families distributing assets incorrectly. This alone highlights why knowing where the Will is held is so important.
You can keep your Will in a few places, for example, in your home or with your solicitor, and it is up to you to decide which one is best for your situation. Any letters of wishes should be stored with your Will but not attached to it may invalidate the Will. You don’t want it to become separated from the Will because your executors and Trustees need the document to ensure your wishes are followed. Finally, registering your Will with the National Wills Register is also a good idea, which attracts a small fee.
There’s much to consider when deciding what to include in your Will. Our specialist team is very experienced at drafting Wills, letters of wishes, trusts and other legal documents related to estate planning.
We also support those tasked with administering estates and acting as professional executors and trustees for our clients who prefer an independent specialist. For more information or advice, please do get in touch. We’re here to help.
Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.