‘Undesirable’ and ‘inappropriate’ for Duke of Edinburgh’s will to be made public

It was recently determined that Prince Philip’s will should remain sealed for at least 90 years as it would be both "undesirable and inappropriate" for the document to be open for public inspection.

Circumstances and legal position

Prince Philip died on 9 April 2021, leaving a will dated 5 June 2013. The executor applied for permission that the will be sealed and not be made publicly available.

The default position (under sections 124 and 125 of the Senior Courts Act 1981) is that when a person dies, if they have left a will and a grant of probate has been extracted on the basis of that will, the will must be published and open to public inspection. However, pursuant to Rule 58 of the Non-Contentious Probate Rules 1987, the default rule can be disapplied if inspection would be "undesirable or inappropriate".

Following convention with royal wills

The judge granted the executor’s application and, amongst other things, the judgment clarified:

• Only one of the two conditions ("undesirable or inappropriate") must be proved, as opposed to both. The threshold to meet either was "not an especially high one".
• There was an "inherent public interest in protecting the Sovereign's dignity, and that of the close members of Her Family…" Despite the public's curiosity, there was no "true" public interest in their knowing the contents of Prince Philip's will.
• The convention over the last century has been that, following the death of a senior royal family member, an application has been made to seal their will. Those applications appear to have always been successful, though no recorded judgments are available.
• In explicitly tackling why there is a departure from the default rule for the royal family, it was found "necessary to enhance the protection afforded to the private lives of this unique group of individuals, in order to protect the dignity and standing of the public role of the Sovereign and other close members of Her family".
• The seal would last for 90 years, but there would be no automatic disclosure thereafter. It is intended that the will would then be opened in private and the Court invited to determine whether the will should be publicly available or re-sealed.
• In the interests of transparency, it is intended that a list naming over 30 deceased royal family members with sealed wills is to be made public in due course.

Discussion

In this case the reasoning behind the Judge’s decision to apply the exception afforded by Rule 58 was very much related to Prince Philip's status as a senior Royal Family member. A question that could be asked is whether other individuals outside the royal family could qualify for the exception on the basis that their wills could attract the wrong kind of interest and that there is public interest in protecting them. This could include senior members of government however, this seems unlikely bearing in mind the public interest in scrutiny of elected officials. In practice the exception under Rule 58 will likely only apply to senior members of the royal family. As the legal and historical context behind the sealing of royal wills has now been set out in a public judgement, it will be interesting to see whether executors for other high ranking members of society may attempt to seal their wills using the “undesirable or inappropriate” exception as justification.