Why don't nearest relatives have an automatic right to view a will?

Question

I was very surprised to discover (under UK English law) that nearest blood relatives do not have an automatic right to view a will.

The will remains a private document until probate is granted. Only the executor and beneficiaries have a right to see it.

It seems that if the executor refuses to show you the will you can only see it by contesting it. Contesting a will is very expensive. You can file a caveat but that can easily be warned off. Once you enter an appearance you immediately risk having to pay both your costs and your opponents all before you know whether you have a claim.

This must be a very common scenario so why isn't there an automatic right for nearest blood relatives to view the will?

(note that there is something called a Larke vs Nugus statement - see https://law.stackexchange.com/questions/16827/probate-larke-vs-nugus-statement but I think that refers to the circumstances in which it was written not its actual contents).

When you write a will you assume a benevolent executor who will involve family in the process even if they are not named as beneficiaries. Alas this is not always the case.

Being recently affected by this I am considering whether to campaign for a change in the law to grant such a right (unless the testator explicitly revokes it) so I am interested in arguments for and against it.

Answer 1

'Why' is not a very helpful question when considering English laws: even a quotation from Hansard saying what the framers of the law hoped to achieve is not generally acceptable in court, as the judges have to apply the law as it was written, not what was intended. Certainly nobody in the legal system could say for sure why a will is entirely confidential until probate, and then entirely public. There are, however, several factors worth considering:

• The purpose of probate is to make sure the estate is administered in accordance with the law, and subject to that in accordance with the testator's wishes. It is not to satisfy the family; English law, unlike the Napoleonic code, does not grant blood relatives any special rights (as an illustration, see Intestacy on Wikipedia.) More particularly, probate is an administrative matter, not a legal decision. If somebody wishes to bring an claim to vary the will (perhaps under the 1975 Act) there is no disadvantage in having it already proved, and a possible advantage in that execution can continue immediately if the claim is dismissed.
• Every member of the family considers that he or she had a special relationship with the testator, and grief can heighten emotions. If a will is refused probate, there is no purpose in making public words (and possibly facts) that would be hurtful.
• Costs of an action are not awarded arbitrarily; they are related to the behaviour of each party. If you stand up and say "I now see that my case was misguided. But I could not know that until I saw the will, and the defendant refused me a sight until discovery; I then took what steps I could to reduce the costs" you would almost certainly not have to pay the other side's costs, and you might be awarded your own.
• The testator had every opportunity to show the will to anyone he pleased, or to write in a provision that certain people should be involved. If this did not happen, there is absolutely not an assumption that "family will be involved in the process even though they are not beneficiaries", and any competent lawyer will have explained that when the will was made. One of the things that bedevil the administration of estates is the differing assumptions made by different people, so the law treats the testator's wishes as those set out in writing and nothing else.

(No citations, since most of this comes from personal experience, which may be out of date and was partly confidential. But pretty much everything here has been in High Court judgements.)

Answer 2

A will is a personal document between the author, witnesses, lawyer and beneficiaries of the will.

There are instances where family members have caused someone pain and friends / charities are more loved by the author. Some money hungry relatives even after seeing the will might be inclined to say it is a fake anyway. If there were reasons given in the will why they should be left out their feelings could very well be hurt as well.