Is your Will a private document?

What about GDPR?

There was some concern from testators when the Data Protection Act came into force back in 2018 that if their solicitor stored their Will on their behalf, the solicitor would be holding personal data in relation to the beneficiaries named in it and would be required to notify the beneficiaries and issue them a privacy notice.  The Information Commissioner’s Office (ICO) clarified though that Article 14(5)(d) of the UK GDPR applies, providing an exception to the duty to send a privacy notice, where the personal data is subject to an obligation of professional secrecy.  Solicitors do not therefore have to contact beneficiaries when the Will is written.

Disclosure under an enduring or lasting power of attorney

A potential exception to your Will remaining private during your lifetime is if your financial affairs are being looked after by an attorney under an enduring or lasting power of attorney.  It may be in your best interests for your attorney to have sight of your Will, to ensure that, where possible, they don’t act in a way that conflicts with its terms – for example by disposing of an asset during your lifetime that you have specifically gifted in your Will. We recommend that you include a provision in your power of attorney document to expressly state whether you wish for your attorneys to have sight of your Will.  If your power of attorney is silent on this point, the Office of the Public Guardian and Court of Protection have confirmed that as the Will is classed as the testator’s property (and the attorney is stepping into their shoes in managing their property and finances), a copy can be disclosed to your financial decisions attorney.

What happens on death?

When the testator dies, the executors have authority to see the Will and need the original to apply for a grant of probate (if required) and administer the estate.  Once a grant of probate has been issued, the Will becomes a public document and anyone can order a copy from the Probate Registry.

Exceptions to the usual rules

The contents of a Will can be sealed in exceptional circumstances, such as where disclosure would, in the opinion of the registrar, be undesirable or otherwise inappropriate.  It is customary when a senior Royal family member dies, for an application to be made to seal the Will from public inspection and you can read more about this in our previous article: Prince Philip’s “Secret Will”.

Options for keeping your estate succession private

If you wish for the division of your estate to remain private, you may be able to achieve this by including a trust within your Will.  There are different types of trust that may be suitable, including:

• Secret trust – making a gift to an individual, intending that they receive it as trustee, to gift to another person (an ultimate beneficiary) under an agreement (express or implied) not documented in the Will.
• Half secret trust – where it is mentioned in the Will that the gift is to be held on trust but the terms and identity of the beneficiary are not disclosed in it.
• Discretionary trust – a trust where the terms are set out fully in the Will and the trust fund is distributed by the trustees at their absolute discretion to one or more named beneficiaries or classes of beneficiaries. The benefit of a discretionary trust is that a number of potential beneficiaries will be named, none of whom have any absolute entitlement to inherit and the trustees will be guided in their distributions by a separate letter of wishes from the testator – a document that does not become public when the grant of probate is issued. This means that on the face of the Will, it is not clear who will benefit or how much they might receive.

Please contact us if you have any queries on the topics discussed above, if you would like to make a Will or Lasting Power of Attorney, or wish to review your existing arrangements.