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WILLS AS PUBLIC DOCUMENTS – PRIVACY AND PROPERTY RIGHTS

Published online by Cambridge University Press:  20 March 2012

Joseph Jaconelli
Joseph Jaconelli*
Affiliation:
Law School, University of Manchester.
*
Address for correspondence: Professor Joseph Jaconelli, School of Law, The University of Manchester, Manchester M13 9PL. Email: joseph.jaconelli@manchester.ac.uk
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Abstract

It is a long-established legal rule that the contents of a will, once it is admitted to probate, are available for inspection by any member of the public. This article is the first examination of this remarkable rule, its possible rationales, and its attendant disadvantages. Particular attention is paid to the problems of the ensuing loss of privacy. Legislative attempts to limit open access are considered together with non-legislative devices used for the same purpose: the secret trust; and applications for the sealing of a will (a device especially prevalent in the case of royal wills).

Keywords

Willspublicationprivacyhuman rights
Type
Articles
Information
The Cambridge Law Journal , Volume 71 , Issue 1 , March 2012 , pp. 147 - 171
Copyright
Copyright © Cambridge Law Journal and Contributors 2012

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References

1 Examples are the “Latest wills” and “Recent wills” columns of, respectively, The Times and The Daily Telegraph.

2 See I. Jackson, The Provincial Press and the Community (Manchester 1971), 218 and the table at pp. 292–293, on the readership for selected items: see the heading “Published Wills”.

3 Sometimes the contents of wills are collected in book form. For an example based on American material see H.E. Nass, Wills of the Rich and Famous (London 1991).

4 In its original form this provision gave the Lord Chancellor charge over the deposit and preservation of wills. The amendment is due to the changed nature of the office of Lord Chancellor under the Constitutional Reform Act 2005.

5 S.I. 1987/2024, issued pursuant to the Supreme Court Act 1981, s. 127.

6 Report of the Committee on Privacy Chairman: Sir Kenneth Younger (Cmnd. 5012, 1972), paras. 177–180.

7 Ibid., at p. 238.

8 However, the use of the alternative to delivery, execution of a deed, does create the possibility of a gap in time between the completion of the gift and the donee's awareness of its existence.

9 There is an exception in the case of discretionary trusts with a very large class of beneficiaries, where the practicalities are such that not every single beneficiary could be informed.

10 The scale of the problem can be seen from the fact that a retired District Probate Registrar has said that, in his later years in office, he was making about 10 orders a week giving leave to prove a document other than the original will (whether in the form of a copy, a completed draft, or a reconstruction of the will). See K. Biggs, “Losing it” Journal of the Society of Trust and Estate Practitioners (STEP) November/December 2005, p. 28.

11 The procedure is used, for example, in Anthony Trollope's Can You Forgive Her?, ch. 55. (I am grateful to Lord Walker of Gestingthorpe for informing me of this reference).

12 See P. Jalland, Death in the Victorian Family (Oxford 1996), 226.

13 This is explained on the basis that, since wills are in the public domain, there is no need to inform legatees of their entitlements – in contrast to the beneficiaries of a trust (an inter vivos trust, at any rate). See J.E. Martin, Hanbury & Martin: Modern Equity 18th ed. (London 2009), 596. However, neither of the principal authorities cited in support – re Lewis [1904] 2 Ch. 656 and re Mackay [1906] 1 Ch. 25 – makes the point that a will is a public document. It is therefore only a rationalisation of the case law.

14 20 & 21 Vict. c. 77: see the historical note on the transition by P.V. Baker at (1974) 90 L.Q.R. 465–466.

15 Dickens, David Copperfield, ch. 33, where he states that the registrars “crammed the public's wills away anyhow and anywhere”.

16 J.G. Nichols and J. Bruce, Wills from Doctors' Commons – A Selection from the Wills of Eminent Persons proved in the Prerogative Court of Canterbury, 1495–1695 (Camden Society 1863), i–iii.

17 HL Deb. vol. 145 cols. 384–397 (18 May 1857).

18 Ibid., at col. 392.

19 See the Supreme Court of Judicature Act 1873, especially s. 3 and s. 16(6).

20 Supreme Court of Judicature (Consolidation) Act 1925, s. 170 and s. 171 respectively.

21 Under Roman law there were draconian penalties for opening, or disclosing the contents of, the will of a person still living. See S.P. Scott (ed.), Corpus Juris Civilis (New York 1973), vol. I, 328 (7): “Anyone who opens, reads publicly, or reseals, the will of a person who is still living, is liable to the penalty imposed by the Lex Cornelia; and, in general, persons of inferior station who are guilty of this offence are condemned to the mines, and those of higher rank are deported to an island”.

22 Langbein, J.H., “The Nonprobate Revolution and the Future of the Law of Succession” (1983–84) 97 Harvard Law Review 1108CrossRefGoogle Scholar.

23 See the Administration of Estates (Small Payments) Act 1965.

24 Langbein, op. cit., pp. 1117–1125.

25 Curiously, only one traditional exception, now abolished, to the nemo dat rule – sale in market overt – relied on the element of publicity. It was based on the idea that transactions in such a market were open for all to see, in stark contrast to clandestine dealings.

26 Langbein, op. cit., pp. 1120–1125.

27 Note that, under subsection (3), s. 27 cannot be ousted by the terms of the will.

28 The wills were those of Sir John Rutherford, Sir William Pryke and Mr Leo Maxse.

29 For reports of the two cases see The Times 15 July 1932, p. 4, and 13 August 1932, p. 5.

30 Freedom of Information Act 2000, s. 21(1). Section 21(2)(b) defines “reasonably accessible” information as “information which the public authority … is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment”. This definition would appear to accord with s. 125, though not with s. 124, of the Supreme Court Act 1981.

31 Public Records Act 1958, Sched 1, s. 4(1)(n). The system in both Northern Ireland and the Irish Republic is similar in that wills that have been proved are kept for a number of years in the district probate registry before being removed to the Public Record Office. See S. Grattan, Succession Law in Northern Ireland (Belfast 1996), 3, and the Republic's Succession Act 1965, s. 42.

32 Earlier still is a statute of 1827, 7 & 8 Geo IV, c. 29. Sections 21 and 22 are concerned with the stealing, destruction, etc of various types of document (testamentary instruments under s. 22, court records under s. 21).

33 Section 6 ran: “Every person who steals any will, codicil, or other testamentary instrument, either of a dead or of a living person, shall be guilty of felony, and on conviction thereof liable to penal servitude for life”.

34 Wills Act 1837, s. 9.

35 As the plot of Puccini's opera Gianni Schicchi illustrates, the failure to secure the location of a will can have consequences even more serious than its loss. Those who gain access to its contents and are disappointed by its terms are provided with an incentive to replace it with a forgery that contains dispositions more favourable to them.

36 Under the Fraud Act 2006, s. 3, a person is guilty of an offence if, with the intention of making a gain for himself, he fails to disclose information that he is “under a legal duty to disclose”. However, it is doubtful whether, in the situations outlined in the text, X and Y are subject to the requisite “legal duty”.

37 Criminal Law Revision Committee, Eighth Report: Theft and Related Offences Cmnd. 2977 (1966).

38 Ibid., at para. 106.

39 A.T.H. Smith, Property Offences (London 1994), 780.

40 Ibid.

41 See note 10 above.

42 Section 20(1), it is submitted, is a further instance of a type of criminal offence identified by Andrew Ashworth: namely, “offences that are defined in the inchoate mode”. See “Defining Criminal Offences without Harm” in P. Smith (ed.), Criminal Law: Essays in Honour of J.C. Smith (London 1987), 7–8.

43 [1914] P. 153.

44 [1932] P. 93.

45 Ibid.

46 In Re N. [1950] V.L.R. 139 the Supreme Court of Victoria, Australia, gave an overview of the situations in which offensive words may be omitted from probate.

47 See Gatley on Libel and Slander 11th ed. (London 2008), 236.

48 See Huth v Huth [1915] 3 K.B. 40.

49 128 Tenn 573.

50 That is to say, there is no hearing which involves the decision of a dispute between parties.

51 Nagle v Nagle 316 Pa 507.

52 The most famous work is N.F. Dacey, How to Avoid Probate (New York 1990). See especially ch. 3 (“Probate – the ugly side”) which lists amongst the disadvantages of probate that of undesirable publicity. Examples include the disclosure of the inheritance gained by those recently widowed and the extent of the debts owed by the estate.

53 See note 6 above, at para. 178.

54 For judicial recognition of the importance of protecting those lottery winners who wish to preserve their anonymity, see Camelot Group v Centaur Ltd. [1998] 1 All E.R. 251, 255e, quoting from the unreported judgment at first instance of Maurice Kay J.

55 See especially H. Steiner, An Essay on Rights (Oxford 1994), 249–258, and C. Wellman, Real Rights (New York 1995), 146–157.

56 Human Rights Act 1998, s. 7(1) and s. 7(7).

57 Human Rights Act 1998, s. 6(2)(a).

58 Undoubtedly a “public authority” under the Human Rights Act, s. 6(1).

59 A case in point is Meetze v Associated Press 95 S. E. 2d 606. The plaintiffs brought an action for invasion of privacy in regard to the defendant newspaper's report of the birth of their child. The newsworthy aspect of the article, and the gist of the plaintiffs' complaint, was that the mother was only 12 years old. In dismissing their case, the court emphasised that the birth was obliged by law to be recorded as a matter of public record, and moreover that the birth certificate was required to state the ages of the mother and father. It is worth noting, in this connection, the contents of the Draft Right of Privacy Bill that was appended to the report by JUSTICE, Privacy and the Law (1970). Put forward as the basis of a new privacy right in English law, it included several defences among which was that conferred by Clause 3 (f): that the defendant “acted under authority conferred upon him by statute or by any other rule of law”.

60 Land Registration Act 1925, s. 112. See generally S.R. Simpson, Land Law and Registration (Cambridge 1976), 49–51 (“Secrecy of the English system”).

61 The Land Registration Act 1988, which first effected the change, was repealed by the 2002 Act.

62 Law Commission, Second Report on Land Registration: Inspection of the Register (Law Com. No. 148) HC 551 (1985), p. 15.

63 Land Registry Consultation Paper, Proposal to Restore Price Paid to the Land Register (October 1997), para. 3.8.

64 According to the new s. 112 of the Land Registration Act 1925, subsections (1)(1)(b) and (2), as substituted by the Land Registration Act 1988.

65 Land Registration Rules 2003, S.I. 2003/1417, rules 136–137. Rule 136(1) states:

“A person may apply for the registrar to designate a relevant document an exempt information document if he claims that the document contains prejudicial information”.

Under rule 136(3) the registrar must so designate the document provided that he is satisfied that “the applicant's claim is not groundless”.

66 Nevertheless, some substantial landowners enjoy a considerable degree of secrecy as to the extent of their holdings because, among other reasons, there has been no transaction requiring first registration of title. See K. Cahill, Who Owns Britain (Edinburgh 2001), 3–5.

67 J. Wedgwood, The Economics of Inheritance (Harmondsworth 1939).

68 Harbury, C.D., “Inheritance and the Distribution of Personal Wealth in Britain” (1962) 72 Economic Journal 845CrossRefGoogle Scholar.

69 A.B. Atkinson, Unequal Shares: Wealth in Britain (Harmondsworth 1974).

70 See Whittle, J., “Housewives and Servants in Rural England, 1440–1650: Evidence of Women's Work from Probate Documents” (2005) 15 Transactions of the Royal Historical Society 51CrossRefGoogle Scholar.

71 See H.P. Levy, The Press Council: History, Procedure and Cases (London 1967), 425.

72 As, for example, to conduct the research that was published in J. Finch, J. Mason, J. Masson, L. Wallis and L. Hayes, Wills, Inheritance, and Families (Oxford 1996). See ibid., at p. 11, where it is stated that the data was drawn from the examination of 800 probated wills.

73 Especially noteworthy in this regard was the treatment of the financial affairs of the leading film director, Stanley Kubrick, in the “Latest wills” column of The Times, 18 December 2000, p. 14. Spurred, perhaps, by having entered as “nil” the net value of the estate of an outstanding practitioner of a lucrative profession, the compiler of the column added that Kubrick had already created a trust for the benefit of his family.

74 Census (Confidentiality) Act 1991, s. 1, taking effect as the Census Act 1920, s. 8 (emphasis added). See, in particular, subsections (3) and (7). On census confidentiality see M. Bulmer, Censuses, Surveys, and Privacy (London 1979), Part III.

75 See Schmidt v Rosewood Trust Ltd [2003] UKPC 26, [2003] 2 A.C. 709 for a discussion of the issues. The Judicial Committee of the Privy Council characterised the right of a person to be informed about any possible entitlement under a trust as forming an aspect of the inherent jurisdiction of the court to ensure that trustees be effectively monitored in the performance of their duties. However, it stressed at para. [67] that “an applicant [for information] with no more than a theoretical possibility of benefit ought not to be granted any relief”.

76 This is a less serious problem in half-secret trusts since the existence of the trust is apparent on the face of the will.

77 Sheridan, L.A., “English and Irish Secret Trusts” (1951) 67 L.Q.R. 314Google Scholar.

78 Bentham, Principles of Penal Law, in J. Bowring (ed.), The Works of Jeremy Bentham (Edinburgh 1843 – reprinted by Thoemmes Press, Bristol, 1995), vol. I, p. 552.

79 Sheridan, op. cit., 329.

80 As regard the pre-modern period see A Collection of All the Wills now Known to be Extant, of the Kings and Queens of England, Princes and Princesses of Wales, and every branch of the Blood Royal from the reign of William the Conqueror to that of Henry the Seventh Exclusive (London 1780).

81 Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and Executors of HRH Princess Margaret and HM Attorney-General [2007] EWHC 1607 (Fam), [2007] W.T.L.R.1129.

82 These two points emerged from a programme transmitted on Radio 4 on 29 August 2005 at 8.00 pm in its Document series.There is some indication that in the USA, where (of course) royal status does not exist, it is possible to have testamentary records sealed. The matter came into prominence in 2004 when two newspapers, the Pittsburgh Tribune-Review and the Pittsburgh Post-Gazette, unsuccessfully applied to unseal the will of Senator John Heinz III. The will had been sealed the day after the Senator's death in 1991. The contents were of particular interest in 2004 since his widow had subsequently married Senator John Kerry, the Democratic Party's candidate for the Presidency in that year. The will and financial records of the estate were made public in 2005 on a renewed application to the court by the two newspapers: see S. Tolliver, “Senator Heinz's financial records open” Pittsburgh-Tribune Review 2 April 2005.

83 HC Deb. vol. 435 col. 182W (13 June 2005) question no. 3106.

84 See note 81 above, at para. [43].

85 See note 5 above, and accompanying text.

86 See note 81 above, at para. [41].

87 Some accounts of the case in the media have said that Mr Brown claims as his father Peter Townsend, the man with whom Princess Margaret had a relationship in the early 1950s but whom she felt unable to marry on account of his divorced status. Mr Brown has, however, told the author that he has never made a claim as to the identity of his father.

88 See Family Law Act 1986, s. 56, as amended by the Family Law Reform Act 1987, s. 22. There could have been several obstacles to Mr Brown's use of this provision. First, the applicant must be domiciled in England and Wales at the time of the application or have been habitually resident there throughout one year before the lodging of the application – a condition that he might not have been able to satisfy in view of his residency in Jersey. Secondly, the drafting of s. 56(1) – that such a person may apply for a declaration “that he is the legitimate child of his parents” – does not appear suited to Mr Brown's cause since the essence of his case is that he is illegitimate.

89 [2008] EWCA Civ 56, [2008] 1 W.L.R. 2327. At the time of writing there appears to be little prospect of an early rehearing of the substantive issues before the President of the Family Division.

90 39 & 40 Geo 3, c. 88, s. 10.

91 P. Hall, Royal Fortune: Tax, Money & the Monarchy (London 1992), 9.

92 (1822) 1 Add. 255: 162 E.R. 89.

93 (1862) 3 Sw. & Tr. 199: 164 E.R. 1250.

94 (1822) 1 Add. 255, 262: 162 E.R. 89, 92.

95 Hall, op. cit., p. 14.

96 Doe v Burdett (1839) 9 Ad. & E. 936, 950: 112 E.R. 1469, 1474, per Gurney B.: “If it means anything, I should suppose that it must mean that the testator, at the time of making the will, stated that that which he was so executing was his will”. This would also appear to be the sense in which the term is used in the Wills Act 1837, s. 13: “Every will executed in manner herein-before required shall be valid without any other publication thereof”.

97 It was that case that formed the focus of the radio programme referred to in note 82 above. The reason for the application, as given in the programme, is that Queen Mary feared the scandal if it emerged that Frank had bequeathed to the Countess of Kilmorey, a married woman and former mistress of Edward VII, some extremely valuable items of jewellery known as the “Cambridge emeralds” that had been in the family since 1818.

98 The subject of this case would appear to be Princess Louise, Duchess of Fife, the eldest daughter of Edward VII, who died in 1931.

99 Prince Arthur of Connaught (1883–1938) was a grandchild of Queen Victoria and Prince Albert, being the son of their seventh child, Prince Arthur Duke of Connaught.

100 George, Duke of Kent (1902–1942), was the fifth child of George V.

101 Princess Beatrice (1857–1944) was the youngest child of Queen Victoria.

102 Tristram & Coote, Probate Practice 19th ed. (London 1946), 9.

103 J. Cox, Wills, Inventories and Death Duties: A Provisional Guide (Public Record Office 1988), 59–63.

104 See notes 92 and 93 above. There is, however, an entry for the Duke of Windsor (1972) who had abdicated the throne as Edward VIII.

105 An (initially) surprising entry is that for Maud Charlotte, Queen of Norway (1939). She was in fact British. A daughter of Edward VII, she had married Haakon VII, King of Norway.

106 British Broadcasting Corporation v Johns [1965] Ch. 32, 79, per Diplock L.J.

107 The only reference to royal wills in the classic work by Joseph Chitty, Prerogatives of the Crown (London 1820), 242–243, merely recites the contents of section 10 of the statute 39 & 40 Geo., c. 88 (as to which see note 90 above and accompanying text).

108 Matters of the royal prerogative that do not touch on high policy are now subject to judicial review. If the exemption from will disclosure does form part of the royal prerogative, it surely falls into this category.

109 Each was named the Wills, &c. (Publication) Bill. Other such measures have been introduced unsuccessfully from time to time. See, for example, the Publication of Wills Bill 1975.

110 Wills, &c. (Publication) Bill 1958, as amended by Standing Committee C, clause 1(1)(c).

111 The Younger Report, see note 6 above, at para. 178, lists solicitors together with legatees and executors as the groups whose potentially unscrupulous conduct might be held in check by testamentary publicity.

112 The case of Dr John Bodkin Adams had been tried in 1957, the year prior to the introduction of the bill. A medical practitioner in Eastbourne, he was suspected of having killed a large number of his elderly patients by administering lethal levels of drugs in return for being left property in their wills. In the event he was acquitted of the single charge of murder brought against him.

113 Wills, &c. (Publication) Bill 1958, as amended by Standing Committee C, clause 1(3).

114 See note 71 above and accompanying text for an account of the opposition by the Press Council to a private member's bill (of unspecified date) that would have curbed newspaper reporting of the contents of wills.

115 The marriage certificate stands somewhat apart from the other two in documenting an event to which there is a required degree of public access.

116 See Cretney's Principles of Family Law 8th ed. by J.M. Masson, R. Bailey-Harris and R.J. Probert (London 2008), 537.

117 Civil Registration: Vital Change – Birth, Marriage and Death Registration in the 21st Century (Cm. 5355: 2002).

118 Ibid., at para. 6.3.