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Rayner my parade! The importance of specialist advice.
Jemma Brimblecombe
It is a little-known fact that all Wills are published and made publicly available upon request as part of the probate process. This means that if your personal representatives, the people appointed by your Will to administer your estate, require a grant of probate to distribute your assets, then your Will can be made available upon request to any member of the public. This is true to the extent that the only exception is the reigning monarch.
Therefore, if privacy is something that you and your family value highly, it is essential that you have a properly drafted Will and supporting documents to maintain this.
Starting point:
When you make a Will, the information you provide to the solicitor helping to prepare your Will is confidential. When preparing a Will, it is likely that you will need to supply the following information as a minimum:
• Your own name and address;
• That of your spouse or civil partner;
• The names and addresses of your executors; and
• A description of your beneficiaries.
Whilst you are still alive, with limited exceptions, nobody other than you is entitled to receive a copy of the Will. This remains the case until probate is granted at which point, a Will becomes a public document and anyone can apply to receive a copy.
A grant of probate will normally be required in an estate where property or shares need to be transferred or where there is more than £20,000 held in a bank account. As intended, this captures a large number of deceased people in the UK and can result in a lot of your personal information, and that of those mentioned in your Will, becoming publicly available.
There are, however, ways in which you can prepare your Will to ensure that minimal information becomes obtainable.
Personal details:
It is difficult to exclude your personal details from the Will because these will be required to be written in the Will to reflect that fact that you can be identified as the testator, the person who made the Will, and the deceased. Your name and address will be verified by the probate registry to confirm that the grant can be issued.
You are also very likely be asked to provide the names and addresses of the people that you have chosen to be your executors. This is required by the probate registry to ensure that the grant is being issued to the correct people as they will be responsible for collecting in and distributing the assets in your estate. It is, therefore, important that these people are correctly identified.
However, you may wish to use professional executors and nominate partners in a law firm or other professional body to administer your estate so that your family or friends do not have to be involved. By doing so, there is no need to provide the personal details of any of your relatives or friends but this does, of course, come at a cost.
The identities and personal details of your beneficiaries can, however, be kept out of the Will completely with the use of a discretionary trust. This is a trust which allows for the trustees to provide for a number of beneficiaries without any of them having to be named individually in the body of the Will. Instead a class can be used such as “my children” or “my siblings” or even just “charities”.
The trustees are normally given a power to add to the class of beneficiaries and have the capacity to deal with the trust assets in the light of a beneficiaries’ circumstances and applicable tax law. In practice, trustees of discretionary trusts usually take account of any guidance provided by the settlor in a letter of wishes.
Letters of wishes:
A letter of wishes would normally comprise guidelines or parameters within which the testator would like the trustees to operate. This might include things like ages at which children should receive a distribution, the level of education to which a beneficiary can receive financial support from the trust or the need to prioritise one beneficiary over another. It should be noted that letters of wishes are not legally binding but it would be unusual for trustees to deviate from any wishes expressed by the testator, unless there are compelling reasons for doing so.
There is, however, sometimes a need for privacy not just from the public, but from those who would benefit from the trust. In Foreman v Kingstone [2005] WTLR 823, the settlor had specified that he wanted his letter of wishes to remain confidential. However, on an application made by the beneficiaries to have sight of this letter, the judge’s view was that trustees must be accountable to beneficiaries, and this cannot be compromised by a settlor’s desire for confidentiality unless there are exceptional circumstances. Such circumstances were found to be lacking in this case and the letter of wishes was made available to the beneficiaries. The Judges commented that the risk of friction between beneficiaries is not of itself a reason for withholding information. A letter of wishes should be disclosed in the absence of a substantiated claim for confidentiality by the trustees.
More recently, the case of Breakspear and others v Ackland and others [2008] EWHC 220 (Ch) considered the disclosure of a letter of wishes and concluded with a set of guidelines for trustees being asked to provide disclosure. These include the fact that trustees should:
• Consider the reasons for the beneficiary's request for a letter of wishes to be disclosed, and whether disclosure would be in the interests of the administration of the trust.
• Not refuse disclosure simply because the settlor has requested that the letter remain confidential.
• Not feel obliged to give reasons for their decision.
• Consider obtaining an undertaking of confidentiality or, if appropriate, redacting information in the letter before disclosure.
As such, it is also important to carefully consider who should act as your trustees and instil in them a sense of your priority for your privacy before you lose the chance to do so.
FURTHER INFORMATION
If you would like any further information or advice about the topic discussed in this blog, please contact Laura Harper or our Private Client team.
ABOUT THE AUTHOR
Laura Harper is a partner in the Private Client team. She advises both UK resident and non-UK resident/domiciled individuals, families and trustees on a wide variety of UK tax, trust law and international estate planning issues, including the planning to be undertaken when moving to or from the UK. She also has extensive experience working on cross-border matters and structuring involving family-owned businesses.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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