Prince Phillip Will privacy case goes to Court – can you make your inheritance private?

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Last week, the Guardian was given permission by the Court of Appeal to launch a legal challenge against the attorney general and the Queen’s private lawyers. According to the newspaper, media organisations were not told about the private hearing focused on Prince Phillip’s Will, which took place in July of last year. As a result, the press were unable to attend and cover the story which the Guardian believes is an affront to the principle of open justice.

In September 2021, Sir Andrew MacFarlane, the president of the family division in the High Court, ruled that Prince Phillip’s Will should remain sealed for 90 years.

As part of its legal challenge, the newspaper is calling on the case to be reheard in the High Court as Sir Andrew supposedly failed to properly consider whether journalists should have been allowed to attend the original hearing.

Lady Justice King of the Court of Appeal gave the Guardian permission to make this challenge towards the Royal Family.

In her ruling, Lady Justice King said: “There is a real prospect of the applicant [the Guardian] succeeding on the ground that the high court erred in law in denying the media an opportunity to make submissions, or at least to attend and hear submissions, as to whether the substantive application to seal the will of His Late Royal Highness, the Prince Philip, Duke of Edinburgh should be heard in private.”

A will is legal documentation that outlines the deceased’s wishes regarding the care of their children, as well as the distribution of their assets after death.

For everyday British citizens, a Will is essential to prevent crucial decisions about their estate in the hands of judges or state officials, which may cause their family grievances.

British law states the Wills of members of the public are to be made public after their death.

The publication of these documents is in place to ensure the instructions in the wills are correctly implemented, to prevent fraud and to alert those who may be beneficiaries.

Wills are therefore made public if they are sent to the Probate Registry for a Grant of Probate.

As a result of this, any Will that is in place when someone dies becomes public, but any Wills that were written previously will remain private as long as they were made void by the Will.

While it is common for the Royal Family to hide the contents of their Will, many Britons wonder if they can publicly hide their inheritance and assets from public scrutiny after death.

Kerry Morgan-Gould, Partner and Head of Trusts & Estates at Ashfords LLP, explained how Wills are made public and how people are able to hide their inheritance if they wish.

Ms Morgan-Gould explained: “The starting point is that a Will admitted to probate is a public document and must be open to inspection.

“However, should concerns about disclosing personal details in the Will warrant it, it is possible to seek an order to seal the Will against inspection, if in the opinion of a registrar, such inspection would be undesirable or otherwise inappropriate.

“If an order is granted, the Will is sealed in an envelope with a note that it is not to be opened without the leave of the President of the Family Division.”

However, Ms Morgan-Gould noted that the possibility of obtaining an order is extremely low as the Court must take into account various factors.

She added: “The threshold to obtain an order is high, the Court must consider the necessity for privacy of those named in the Will, or any other individual who may have a private interest in the Will which might be adversely affected, against the statutory presumption of openness.

“There is a long-standing practice of the Wills of senior members of the Royal family being sealed for over a century and Prince Philip’s Will is no different.

“There is no record of any applications having ever been refused.

“It is highly unlikely that the Court will adopt a different approach and will wish to protect ‘the dignity of the Sovereign.”

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