A will is a legal document which records how an individual would like to dispose of their estate after they have passed away.
In England and Wales, people have ‘testamentary freedom’, which means they can dispose of their estate as they wish, without any laws stipulating who must inherit from their estate, unlike some jurisdictions. Due to a will’s significance, some people will prefer to keep the terms of their will private, while others may take an open approach.
During lifetime
Each person’s circumstances are different and therefore the choice as to whether they share their will with family members or close friends is theirs. Of course, an individual can change their will at any point during their lifetime, providing they have the required testamentary capacity, and each new will revokes the previous.
After death
After an individual has passed away, the executor who is the person or people who have been appointed in the will to administer the estate is the only person entitled to see the will and read its contents. An executor may decide to send a copy of the will to family members or close friends and allow them to read its contents, and usually, there is little reason not to disclose the contents of a will. However, strictly speaking, an executor does not have to do this. No other person (including a beneficiary) has a legal right to see a copy of the will.
After the Grant of Probate
As part of the executor’s role, they must collect in the individual’s sole assets, pay any liabilities and distribute the estate in accordance with the will. For the executor to claim, transfer, sell or distribute any of the person’s sole assets, he or she may (and most likely) will have to apply for a Grant of Probate. A Grant of Probate is a legal document issued by the Probate Registry which confirms that the executor has authority to deal with the person’s assets on their behalf. Not all estates require a Grant of Probate to be administered. However, the majority do due to the person’s owning sole assets, such as a sole bank account or investments.
In the limited circumstances that a Grant of Probate is not required, the individual’s will is not required to be disclosed to anyone other than the executor(s) and will remain a private document. If, however, a Grant of Probate is applied for, which involves sending a copy of the individual’s will amongst other documents to the Probate Registry, the person’s will become a public document, a copy of which is then capable of being request and obtained.
How to obtain a copy of a will
The Gov.uk website allows any individual to search for and purchase a copy of a probate record (a will or Grant of Probate). Currently, the cost per copy document is £1.50. A probate record can be applied for online or by post. A search can be made for anyone who has passed away in or after the year 1858, however, if an individual has passed away within the last 6 months and a Grant of Probate has not yet been extracted, a ‘standing search’ can be made.
Standing search
A standing search allows an individual to lodge their request for a copy of the Grant of Probate before it has been extracted. Instead of regularly searching the online records (as above), the Probate Registry will send a copy of the probate records once they are available. A standing search expires after 6 months; however, it can be extended for a further 6 months if a request to extend the search is made to the Probate Registry within one month of the expiry date. A standing search currently costs £10 for each 6 months.
Larke v Nugus request
Before probate, or if probate has not needed to be obtained, originating from a Court of Appeal case (Larke v Nugus), a Larke v Nugus request is a letter used to obtain information about the preparation and circumstances surrounding the execution of a will. The requests are made by disappointed beneficiaries who have concerns about the contents of the will or its validity. As part of a Larke v Nugus request, the solicitors or will writer who prepared the will should provide a copy of the will and information about how it came to be prepared and usually will provide a copy of their will file. This is another route to obtain a copy of it.
Subpoena
If a disappointed beneficiary who has concerns about the contents or validity of a will is refused a copy of the will, they may make an application under section 50 (2) of the Non-Contentious Probate Rules 1987 for an order or subpoena to provide the will.
