For some, writing a will can be a very personal endeavour that one wants to keep private, and its contents hidden from prying eyes. It can stay this way throughout your life. However, after death this may change, and your will could become a public document.
What happens to my will on death?
Immediately after your death, your will remains a private document. It would be accessible only by your executors, who may send a copy of your will to your beneficiaries to notify them of their entitlement under the will.
However, as the administration of your estate progresses, your executors may wish to register your principal will in the Books of Council and Session to preserve the original deed. Registration prevents there being any concerns about the original will going missing in the post or whilst in someone else's possession.
Upon registration, your will becomes a public document and extracts can be obtained by those who request it. Registration ensures that the location of the principal will is always known, and unlimited copies of the registered will (known as extracts) can be requested where required. Whilst the register is public, there is a fee for obtaining extracts and certain information about the document is required to request it. If you do not have the information to hand, there is a charge to search the register.
If your will is not registered in the Books of Council and Session, your will would only become public at a later date, when Confirmation is granted by the Sheriff Court. Once this occurs, your will is recorded in the Court Books and individuals can obtain a copy of your will from the court for a fee.
It is worth noting that Confirmation is not required for all estates (it is dependent on the value and composition of the estate), so it is possible that your will would not become a public document at all, unless it had already been registered (by way of choice by your executors) in the Books of Council and Session.
If your will is not registered in the Books of Council and Session nor recorded in the Court Books, it may be possible for a copy of your will to be obtained through a court action. To do this, an individual would need to make an application to court and set out how questions about the will would be relevant in court proceedings which have or are likely to be raised (e.g., an action for reduction of the will).
What happens to my letter of wishes on death?
A letter of wishes is a plain English document you may have instructed to sit alongside (but separate to) your will. It is not legally binding and seeks to provide your executors with additional guidance on certain aspects of your estate, i.e., how you wish trust funds to be used to benefit your children, or guidance as to your funeral instructions or instructions for your guardians as to the care of your children. It can also be used to explain to a beneficiary why certain provision was / was not made for them in the will.
As this type of document is guidance only and does not meet the necessary requirements for registration, letters of wishes are not registered in the Books of Council and Session. Letters such as these also do not form part of the Confirmation process and therefore remain a private document on your death. If you have wishes (rather than instructions) that you wish to keep private after your death, then a letter of wishes may be an appropriate document to choose.
Conclusion
While a will does not become a public document in every estate, it is unavoidable in many scenarios. With this in mind, we would recommend that principal wills are registered in the Books of Council and Session on death. Balancing privacy with preservation is a fine line and we understand everyone has differing views.
If you would like to review your existing will and/or letter of wishes or put a new will in place, please get in touch with your usual Brodies contact who will be delighted to assist.
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Trainee solicitor
