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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.

migrated from law.stackexchange.com Feb 1 '17 at 22:55

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  • Almost certainly the answer is "because this hasn't been that much of a problem" Arguments about changing things are probably off-topic here, you may want to try politics.SE – user9389 Feb 1 '17 at 19:48
  • Interesting. This would not be the case under the law of any U.S. state of which I am aware, and was not, I believe, the historic probate law in England (England and Wales, Scotland and Northern Ireland each have autonomous legal systems on topics such as these, there isn't actually such as thing as a "U.K. law" on the topic), so it must be a more recent innovation. – ohwilleke Feb 2 '17 at 4:40
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    why has this been migrated from law? The key question (in bold from the start) is a legal one. The politics part is an aside. – Bruce Adams Feb 2 '17 at 11:47
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'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.)

  • A typical assumption is that the executor is reasonable. A reasonable executor might be expected to inform family about a death, invite them to the funeral and go though the deceased things and ask if anyone wants anything. So that you don't have to be named as a beneficiary to receive a photograph for example. The problem here is dealing with an unreasonable executor (in my case one who is not even family and I have never met). – Bruce Adams Feb 2 '17 at 11:10
  • You are wrong that there is no disadvantage to bring after the will is proved. The assets could have been legally distributed and impossible to recover. You might only be able to get financial compensation. – Bruce Adams Feb 2 '17 at 11:15
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    In UK law if someone is intestate the assets go to the blood relatives so I don't know why you are using that as a point to say the family don't have special rights. – Bruce Adams Feb 2 '17 at 11:18
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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.

  • That is exactly what an executor told me as a excuse to refuse show me the will. After probate was granted it was clear he was lying. My feeling is the default is reversed. You should have a right unless the testator revokes it. That puts the onus on them and raises the bar slightly for someone exerting undue influence as they have to influence them to be negative about someone else rather than positive about them. – Bruce Adams Feb 2 '17 at 11:46
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    If you believe the executor is lying then an experienced lawyer might benefit you. An opinion can cost you hundreds getting something done (even failed motions) will cost you thousands. In your mind you need to weigh cost/benefits. – WinEunuuchs2Unix Feb 2 '17 at 11:57
  • Quite but unfortunately fraud is a crime but lying isn't. – Bruce Adams Feb 3 '17 at 13:45

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