Where there's a royal will

It has long been known that the wills of reigning monarchs are sealed following their deaths. However it has never been entirely clear firstly what was the reason for this and, secondly, to what extent this rule extended to the whole British Royal Family. A case recently heard in the High Court might shed some light on this arcane practice. Judgment is awaited in a case brought by a Jersey man who is seeking to unseal the wills of the late Queen Mother and that of the late Princess Margaret.

Statute law relating to this area is found in section 5 Crown Estates Act 1862. This states: 'provided always, that a will or other testamentary disposition by Her Majesty, her heirs or successors, of or concerning any such private estates as aforesaid, shall not require publication'.

All other wills require publication if an application is made to obtain a grant of representation to administer them. If an estate is worth less than £5,000 then the Small Estates Acts provide that assets can be released without the need for a grant.

Private estate of the monarch

The private estates of the monarch are defined by section 1 Crown Private Estate Act 1800. This is all such land, hereditaments of any tenure as are purchased out of money issued and applied for the use of the privy purse, or coming to the monarch in any manner from any ancestor or other persons not being kings or queens of the realm, or which, belonging to the monarch or any persons in trust for the monarch at the time of his or her accession, might have been legally disposed of by gift, sale or devise. This definition was subsequently extended in 1873.

Tristram & Cootes' Probate Practice (28th Edition) states that the court has no jurisdiction to make a grant in respect of the estate of a deceased British Sovereign and quotes as reference for this: re King George III's Goods 1822 I Add 255 & Re King George III's Goods [1862] 3 Sw & Tr 199.

Family matters

In the case of In the Goods of King George III (1822 I Add 255) the court heard a case brought by someone styling herself as her Highness Olive, the natural and lawful daughter of the Duke of Cumberland who was the lawful brother of King George III. The case concerned a document that purported to be the last will of the king and dated 2 June 1774. This will left the sum of £15,000 to Olive. King George III died on 29 January 1820.

The court had to decide on the rights of the sovereign to make a will and the jurisdiction of the court to decide such a case.

If a sovereign does not leave a will, then his or her successor to the crown becomes entitled automatically to their personal estates and effects. As this case involved the payment of a legacy to the claimant the case necessarily was one against the sovereign himself, George IV.

The court found that there was no single instance recorded in the history of the wills of sovereigns from the time of King Alfred the Great to the present time of probate having been taken of the will of any deceased sovereign and furthermore of no such wills having been contested. The only occasion quoted was where the executors of the will of King Henry IV refused to act because they feared that his assets were insufficient. This case was settled by new King Henry V agreeing to pay the appraised value of such assets.

The only instance recorded of a sovereign's will being deposited in the court's registry was the will of King Henry VIII. However, this appears to have only been the deposit of a copy and there is no record of a grant of probate being issued. It is not clear why the copy will was so deposited.

The court also heard evidence that sovereigns have had the right to make a will since King Richard II's time but as there has been no recorded instance of probate being issued Sir John Nicholl who heard the case, stated that that was pretty decisive evidence that the court had no jurisdiction whatever. If, however, they had not made any will over this period and died intestate there is still no evidence of letters of administration having been granted during any time.

A further point was made that if the present case could be allowed to succeed then it would necessarily involve a case against the crown itself. However it was clear that the court had no jurisdiction over the sovereign in any matter. The case also confirmed that wills of queens' consorts are wills of subjects and therefore treated in the same way as those of ordinary citizens.

'Illegitimate' son claim

We now turn to the present case. This involves a claim by a Jersey man, Robert Brown, to prove that he was the late Princess Margaret's illegitimate son. He has requested the court to unseal her will and that of the late Queen Mother, as he believes that they contain provisions for him. The case has highlighted the modern practice of sealing the wills of members of the British Royal Family. It appears that in 1910 the then Duchess of York persuaded a judge to seal the will of her brother Prince Francis the brother in law of the future King George V. It appears now that the reason for this was to avoid disclosure of a scandal involving Prince Francis.

It is understandable that a court might bar disclosure of the contents of a sovereign's will but why the court found itself persuaded that there were grounds to extend this to the brother in law of a future sovereign is unknown. However, this successful application has clearly set a precedent and to this day it appears that the wills of various members of the Royal Family can be sealed on application. The court heard that in 2002 the Attorney General successfully obtained a decision by the then president of the Family Division of the High Court, Dame Elizabeth Butler-Sloss, that all Royal wills should be sealed. It was claimed in court that such wills needed to be sealed to protect the Royal Family from press and public intrusion and from 'busybodies, cranks and mischief makers'.

Interestingly there was no such application made when the Princess of Wales died in 1997. Clearly by the time of her death she had her Royal Highness title removed following her earlier divorce. However it is surely possible that her executors could have made a successful application to have her will sealed as she was the mother of a future sovereign? Certainly the 1910 application to seal the will of a brother in law of a future monarch set a clear precedent.

Points of clarity

It is to be hoped that the decision in the present case will clarify a number of points. On what grounds can an application be made to seal a royal will? How is a royal will defined for these purposes? How far does this extend? Is such a will sealed for all time? On what grounds have the legal advisers to the Royal Family been able to extend the definition of 'Her Majesty, her heirs or successors' as contained in Crown Estates Act 1862 s 5 ? It is understandable that the will of the current sovereign and her heir should be sealed for a period of time but surely the practice is now far too wide ranging. Is it really acceptable that minor members of the Royal Family who will never be able to accede to the throne should still benefit from this practice in the early 21st century?