Who is entitled to know what’s in your Will?

On behalf of Attwaters Jameson Hill posted on Tuesday, July 3rd, 2018

We’re often asked who has a right to see a Will and know its contents. In general terms, a Will is a private document while the person who wrote it is alive, and as their solicitor we are required to keep out clients’ affairs strictly confidential. After their death, a Will remains private unless and until a Grant of Probate is issued.

When someone dies, the only people who have a right to see a copy of the Will are the Executors, the person or persons who were appointed in the Will to administer the deceased’s estate and distribute the assets to the beneficiaries. Executors don’t have to disclose the terms of a Will before the Grant of Probate has been issued; even sole beneficiaries don’t technically have the right to see the Will until after probate has been obtained. However in practice, families usually discuss these matters in advance, and beneficiaries are told beforehand.

In some cases it is not necessary to apply for a Grant of Probate, for example, if the estate is very small, or everything owned by the deceased was held jointly with someone whose share automatically passes to them (normally a spouse or civil partner). In these circumstances, the content of the Will remains private, although the personal representatives may choose to send a copy of it to the main beneficiaries.

In England and Wales, once probate has been granted, which means when any debts and taxes have been paid enabling the assets to be distributed, the Will becomes a public document. Anyone interested in reading it can do so by applying for a copy of it from the Probate Registry and paying a fee of £10.

A Letter of Wishes remains private

Knowing that a Will becomes public knowledge in due course can be concerning for some people, as there may be things they would prefer didn’t become common knowledge. If that’s the case, you could consider writing a Letter of Wishes and keeping it alongside your Will. It’s important to be aware that a Letter of Wishes isn’t legally binding, (it makes sense to take legal advice on what it’s appropriate to include in either document) but it does give you the opportunity to communicate thoughts and wishes to your family and friends that you would prefer to remain private after your death.

So, if you’ve omitted someone from your Will, you could state the reasons for your decision in a Letter of Wishes. If necessary, the letter could be produced as evidence if a claim is made against the estate, or an allegation is made that you didn’t intend to exclude someone, and their omission is an oversight on your behalf.

Loss of mental capacity

Under a Lasting Power of Attorney (LPA), someone you’ve appointed to be your attorney and look after your financial and property affairs in the event that you lose the mental capacity to do so for yourself, owes various duties to you, the donor. This includes a duty to act in your best interests and carry out your succession plans as far as possible.

The only way that an attorney (or where there isn’t an LPA in place, a court-appointed deputy) can do this is by knowing the contents of your Will. By being aware of your intentions they can make appropriate investment decisions, or apply to the court for specific orders relating to property.

However, if you would prefer your Will to remain confidential in these circumstances, you can stipulate in your LPA that you don’t wish your Will to be disclosed prior to your death.

If you would like advice on any aspect of your Will, then do call our friendly and approachable team on 0330 221 8855, alternatively you can email wills@attwaters.co.uk.

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