On 15 December 2023, the UK government published a consultation paper on the ‘Storage and retention of original will documents’. The paper can be accessed online here. At the same time, the government issued a press release backed up by posts on social media.

In response, I published a video outlining some of my many initial concerns and suggesting that we (i.e. the historical research community) should fight the proposals. The 48 hours since the consultation paper was published have seen an immediate and passionate reaction against the main thrust of the proposals; i.e. the suggestion that original wills should be destroyed. These reactions have come from various parts of the historical research community suggesting that there is some unity of thought. I hope that in the next few weeks that initial outpouring of feeling will result in a focussed campaign to have the proposals in this paper utterly rejected.

I thought it might be useful to highlight the main arguments against the proposals and for that purpose I have copied the 54 points published in the paper and, over the next few weeks, will attempt to bring everything together in a coherent form by creating a comments section underneath each point. To that end, I would appreciate it if interested/concerned parties would comment at the foot of this blog, highlighting the particular point on which they wish to comment; I can then add the pertinent points to the relevant sections.

We can fight this and we can win. Together we are stronger…

Ministerial Foreword

Wills are very important and personal documents. They set out someone’s wishes for how their property and assets are to be distributed after their death and are their opportunity to ensure beloved family members and friends are provided for and that charities they support receive donations.

Wills are also very important in legal terms; they are the basis for the granting of legal authority (probate) to executors to administer the deceased person’s estate.

The legality of a will is something that needs to be established. In most cases this is done by the courts in granting probate, however, in a small number of cases wills will be subject to challenge. For example, by an allegation that a fraud was committed, or undue influence exerted on the person making the will.

That means the court will need to check the will and hold it in case challenges are made.

At the moment there are no limits to how long courts hold these original will documents and they are held long past the period when a challenge might be brought. HMCTS has original wills dating back to 1858. There are heavy costs involved in storing wills on this permanent basis and that cost rises each year as more will documents are added.

It is my responsibility to challenge the current system on behalf of taxpayers and to look at ways of preserving original wills in a more economic and efficient manner that still allows challenges to be properly determined. With this in mind, I am keen to seek views on whether original wills should only be held for a fixed period of time and at a certain point move to holding a digital only version.

HMCTS has since 2021 created digital copies of new wills deposited with it, and it would be possible to digitise other stored wills held on a rolling programme. This would enable us to continue to keep wills permanently and available for inspection, but as a digital copy and therefore without the heavy costs that are currently incurred.

This consultation proposes reforms in furtherance of that approach and seeks views on whether those reforms should be pursued and the safeguards that should be built in.
I welcome hearing those views in taking this work forward.

Mike Freer MP
Parliamentary Under-Secretary of State for Justice

Executive summary

1. This document sets out the Government’s proposals to introduce a system for preserving will documents in digital form, as opposed to the current system of keeping all the original paper documents submitted in applications for probate (the legal authority for administering a deceased person’s estate), and seeks views on the related question of whether the right to inspect wills that are stored should be changed.

2. On the form of stored wills, the current system involves significant storage and preservation costs which increase each year and are difficult to justify when digital preservation offers an equally efficient, much more economic and environmentally beneficial alternative.

3. The consultation paper seeks views on the principle of moving to digital-only preservation of will documents and, in that event, whether there should still be any retention period for the original paper will documents.

4. The document also invites views on whether for famous and historic figures that principle should not apply, and their original paper will documents should be preserved in perpetuity.

5. The consultation also asks consultees how the legislation should be amended if the decision is to move to digital-only preservation of wills, with the two options being a change made via the Electronic Communications Act 2000 (using secondary legislation) or pursuing primary legislative reform in a Bill before Parliament.

6. The Government welcomes views from court users, the legal and archivist professions, all other probate practitioners and historians, as well as the judiciary and anyone else with an interest in this topic.

Introduction

7. This paper sets out for consultation the proposals to amend legislation so that only digitised versions of original will documents of most wills are preserved in perpetuity and the paper versions for a limited amount of time only and seeks views on that principle and the period for which paper wills should be stored. The reforms would amend the current costly practice of holding all original paper wills forever.

8. The consultation also asks more general questions about the current law on the right to inspect wills.

9. The consultation is aimed at, in particular, the legal profession in England and Wales, and especially trusts, estates and probate practitioners. It will also be of wider public interest given the subject matter as the vast majority of people will at some stage be involved with a will, whether making one or having an interest in one.

10. The consultation runs for 10 weeks and will close on 23 February 2024.

11. A Welsh language consultation paper will be available at www.gov.uk/official-documents.

12. An Impact Assessment has not been prepared for this consultation paper as the proposals are unlikely to lead to additional costs or savings for businesses, charities or the voluntary sector, but will bring savings for the public sector (HM Courts and Tribunals Service). The costs and potential savings depend on which of the reform options are pursued, as outlined in the options for reform section of this paper. (see 23–45).

13. Copies of the consultation paper are being sent to:
The Law Society
Bar Council
Chartered Institute of Legal Executives
STEP – the Society of Trust and Estate Practitioners Council of Licensed Conveyancers
Master of the Faculties
Association of Certified Chartered Accountants
Institute of Chartered Accountants in England and Wales Institute of Chartered Accountants in Scotland
Chancery Bar Association
Family Law Bar Association Resolution
The Institute of Professional Will Writers The Society of Will Writers
BEST Foundation
The Institute of Legacy Management Archives and Records Association British Records Association
British Association for Local History Historical Association
Information and Records Management Society The National Archives
Royal Historical Society

14. However, this list is not meant to be exhaustive or exclusive and responses are welcomed from anyone with an interest in or views on the subject covered by this paper.

Current legal framework

15. The current legislation governing the depositing and preservation of original wills is set out in the Senior Courts Act 1981 (the 1981 Act). Section 124 states:
“All original wills and other documents which are under the control of the High Court in the Principal Registry or in any district probate registry shall be deposited and preserved in such places as may be provided for in directions given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005; and any wills or other documents so deposited shall, subject to the control of the High Court and to probate rules, be open to inspection.”

16. The general right of access to will documents is qualified by the Non-Contentious Probate Rules, Rule 58 providing:
“An original will or other document referred to in section 124 of the Act shall not be open to inspection if, in the opinion of a registrar, such inspection would be undesirable or otherwise inappropriate.”

17. The legislation (Section 125 of the 1981 Act) also provides that copies of wills may be obtained from HM Courts and Tribunals Service (HMCTS) on payment of a fee.

18. The rationale for public inspection of wills can be briefly summarised as follows:
a. To provide those with an interest in the deceased person’s estate a means to identify whether they are a beneficiary, or for creditors to protect their rights.
b. To provide an opportunity for inspection of the composition of the will and the signature of the testator, which may become evidence or grounds for a challenge to the validity of a will – for example due to an allegation of fraud or undue influence.
c. To provide the basis for any challenge that the will used as proof for probate (the legal authority to administer an estate) is not valid as not being the most recent will made by the testator, or incomplete (for example not including a codicil, a legal document that amends a will).
d. To provide the basis for beneficiaries and interested parties to hold executors and trustees to account for the administration of the estate or a related trust, and to help ensure a testator’s intentions are implemented.

19. The origins for the current legal framework date back to reforms in the 19th Century, resulting in the Court of Probate Act 1857. That legislation transferred responsibility for granting probate from the ecclesiastical courts to a new Court of Probate and thereby created the modern system of a Principal Registry and District Probate Registries. This legislation provided for a system of depositing wills and for their inspection.

20. As such, HMCTS holds wills dating back to 1858 when the Principal Registry was established. Wills prior to 1858 are held, if at all, by The National Archives or other institutions (advice on accessing earlier wills can be found on The National Archives’ website at: https://www.nationalarchives.gov.uk/help-with-your-research/research- guides/wills-or-administrations-before-1858/).

21. Wills are purely private documents until such time as they are ‘proved’ by the process of probate being granted. Thereafter they are available for inspection to those registering and paying the necessary fee to HMCTS.

22. As set out at paragraph 14, the right of inspection is qualified and may be disapplied. This is known as an application to ‘seal’ a will and requires a judge or probate registrar to agree that ‘such inspection would be undesirable or inappropriate’. An example would be where a will set out a confidential personal address which would compromise personal safety (for example someone on a witness protection scheme). At present there is no formal guidance for how this discretion should be exercised.

The case for reform

Reforming the principle of retaining original paper wills

23. There are a number of reasons for proposing reform in this area. The primary factor is the very high cost of preserving the store of original paper wills and the supporting documents supplied in probate applications. This is estimated to be in the region of £4.5 million per annum and costs will continue to rise as the number of documents stored and running costs increase with each year that passes. These services are outsourced, which adds an additional complexity and potential financial burden in that in the event of a change in suppliers there would be significant costs in physically moving very large amounts of physical material between sites under controlled conditions.

24. Given the cost and the physical demands the storage of this mass of paper documents presents, the immediate question arises as to whether this material needs to be preserved in paper form indefinitely, or whether a digitised copy of a will would suffice and is of equivalence in legal terms. The capacity to make and retain digital copies is already available. Since 2021, digital copies of wills and supporting documents in all new applications, whether online or not, have been made. That has proven entirely satisfactory for users; engendering doubt about the necessity of keeping the originals in new applications.

25. In the event there is a move to storing digital copies alone for new probate applications, the costs of storage would not escalate as quickly, however as wills stored currently date as fact back as 1858, and so will remain the vast majority for some time, the costs would remain high. However, since 2021, for all older wills, when a request for copy has been received, a digital version has been made to fulfil that request. That too has proven satisfactory. Therefore, a rolling programme could also be introduced to digitise all older wills, reducing the costs markedly below the
current levels.

26. There is also the wider context of the HMCTS reform programme for modernisation of court services by involving greater use of digital processes for applications and court records. The Government considers that an indiscriminate system, built on permanent storage of paper records, is inconsistent with the efficiency and economic needs of the objectives of the justice system and this reform programme.

27. In addition, the Government considers that a digital copy of the will has the equivalent capacity as the paper will to establish the intention of the testator. As a consequence of the huge advances that technology has made over recent years digital copies of original documents can be extremely detailed and all relevant marks on the original will be retained in the digital version. For example, signatures and margin notes and corrections show up as easily on the digital will. All parties and courts will therefore be equally able to rely on digital copies of wills to challenge the validity of that will or another as they would be if relying on the paper will.

28. However, whilst the equivalence of paper and digital wills for the purposes of probate appears clear to the Government, and therefore there is in principle no need to retain paper copies, it recognises that there may also be, firstly, an emotional relationship that the family of the testator will have with the original documents and, for want of
a better term, secondly, an emotional relationship that society retains for probate matters.

29. As to the first aspect, that may, for example, arise as a consequence of the views of a testator on very personal relationships to explain their distributions and, coming after their death, being their last words to those who survive them. As to the second, that is perhaps best reflected in the fact that paper wills have been kept continuously since 1858, which is over 160 years, despite the fact that the capacity to challenge a will, for which want of witnesses and other evidence, would likely have expired after a tiny fraction of that time.

30. However, whilst that may be the case, the Government also considers that the emotional value of such original documents to relatives and to society is likely to diminish over time and, importantly, the question of retaining a digital version of wills in perpetuity need not be considered in isolation. That approach could exist side by side with a policy of retaining the original paper documents for a limited period of time. If so, that raises the question of how long that time period should be.

31. There will no doubt be a variety of perspectives on that duration that are relevant, and this consultation deals with that issue more fully below, however, as an example the Government considers that a significant one is to consider the original paper will as a part of a formal court record. The appropriate period of time could therefore be drawn from other policies and practices with respect to other court records. The durations that court records are retained for are set out more fully below but, as an example, in trusts and equity cases more generally court records are retained for 6 years.

32. Whilst not a direct comparator, as many of those records will not be in the original but in digital form only and will not contain the same significant sentiment of wills and probate matters generally, the Government believes it offers a reflection of the shortest periods that original paper wills could be retained, though there will be a need to set the actual period longer by reference to other factors.

33. Therefore, the Government considers that there is a strong case for legislating to amend the requirement to retain paper-copies alone to allow digital copies instead but would nonetheless introduce a policy to retain those paper wills for a number of years. However, we invite views as to concerns either about the principle or the details of the possible approaches for achieving that policy.

Method of reforming the legislation

34. If the principle of reform (in relation to permanent storage of original will documents) were to be accepted, the Government considers that it could be achieved by secondary legislation under the Electronic Communications Act 2000 (the ECA 2000). The ECA 2000 was intended, in part, to ensure a simple solution to amend legislation, including primary legislation, to allow legal requirements with respect to documents to be fulfilled by digital versions. Alternatively, it could be achieved by amending the 1981 Act by primary legislation.

35. The Government’s provisional view is that the most appropriate approach, being both effective and timely, is by using the powers in the ECA 2000. That Act gives the appropriate Minister the power to modify legislation for the purpose of ‘authorising or facilitating the use of electronic communications or electronic storage’ (sub-section 8(1)).

36. There must be grounds for these powers to be used, with the reform’s purpose matching the criteria in the ECA 2000. The Government believes this proposal for preservation of digital will documents would match the criteria of ‘keeping, maintenance or preservation …of any account, record, notice, instrument or other document’ (sub-section 8(2)(e)).

37. The legislation also requires that the relevant Minister may only use these powers where they consider that electronic communications or storage would be ‘no less satisfactory’ than the alternative (in this case preserving paper documents)
(sub-section 8(3)).

38. The Government considers that the provisions of the ECA 2000 are therefore available for use towards this policy and proposes exercising those powers by a narrow amendment limited to ensuring the requirement to have wills available for inspection could be met with a digital copy.

39. An alternative approach would be to amend the 1981 Act by primary legislation. Although this would be harder and may take longer (in terms of the difficulties of securing a suitable legislative vehicle and Parliamentary time) it would enable other matters that are tied to the digital records to be included where they cannot be included under the ECA 2000. One matter could be any need to more broadly reform the law on the right to inspect wills more generally, as set out above.

40. In addition, the primary legislative route would also provide more opportunity for Parliamentary scrutiny and debate than if secondary legislation is used.

Options for reform

41. The Government considers that there are certain issues on the nature of the reform that need to be considered. This section sets those out and the options available for them.

Retention period for original will documents

42. The question which immediately arises, if the principle is accepted that the courts retain original will documents in a digitised form), is whether and how long the original paper will document should be generally retained?

43. As explained above, whilst the Government considers there is equivalence between paper wills and digital copies, it recognises that the public may be concerned that the system transitions immediately from paper wills being retained to the retention of only digital versions. The Government therefore considers that whilst the law should be changed to permit retention of digital versions in place of original paper wills, there should also be a policy to retain those paper wills, and potentially other documents as set out below, for a certain period.

44. In identifying that period, the Government has considered various comparators in both court records and other places. It is of course important to record that they are not direct comparators, as many of those records will be retained in digital form only, but could nonetheless help to identify what should be a baseline duration for a policy of holding the original paper will before questions of sentiment are addressed.

45. Retention periods for other court documents are as summarised in the table below. The periods vary according to business need, and there is no definitive retention period across all types of court case/record.
Type of case/document Retention period Probate application forms 2 years
Inheritance – Family Provision claims 3 years
Trusts and Equity cases (High Court, Chancery) 6 years
Chancery cases 7 years
Bankruptcy cases 20 years
Decree Nisi and Decree Absolute (official divorce records) 100 years

46. Another comparator is that Government departments keep documents relating to policy and decision making for 20 years, and then – in accordance with the Public Records Act 1958 – transfer them to The National Archives, or to an approved place of deposit, those records which have been selected for permanent preservation, albeit those records will also only be in digital form.

47. A further example is from the Ministry’s current retention policy for applications for compensation arising from miscarriages of justice. Whilst the context differs, and again those documents will only be digital, they are retained for 25 years.

48. On the basis of that table and the other examples, the Government considers that a reasonable duration would be somewhere in the order of 10 to 12 years, bearing in mind that digital copies of wills would remain in the record permanently and beyond the longest period referred to above, being the100 years for Decrees on divorce.

49. Lastly, there is the need to reflect the general significance to such original documents to individuals and to society as a whole.

50. Taking those examples into account, and the sentimental nature of probate and wills and the fact that there will be a permanent digital record, the Government suggests 25 years as a suitable period.

Preserving the wills of famous people

51. The National Archives preserves the wills of several famous people who died before 1858 when the new Probate Registry system was established, with examples being William Shakespeare and Jane Austen. https://www.nationalarchives.gov.uk/help-with-your-research/research-guides/famous-wills-1552-1854/ Establishing a general system of digitising original will documents would not preclude exceptions being made where there is a national interest in preserving an original will document for posterity and future historical or academic enquiry.

It’s questionable whether this point is written through ignorance or whether it is purposefully desgined to mislead readers.

The National Archives does indeed hold copies of the wills of famous people (in record series PROB 1, Prerogative Court of Canterbury (PCC): Wills of Selected Famous Persons). These wills were removed (in 1962) from the main collection of original PCC wills, then held in the Principal Probate Registry and transferred to the Public Record Office. The remainder of the collection was later transferred in its entirety to the Public Record Office (now the National Archives). The crucial point here is that not a single will was destroyed.

The purpose of this point as far as the consultation paper is concerned would appear to be to suggest that there is a precedent here in what the National Archives has done with pre-1858 wills proved in the Prerogative Court of Canterbury. This is categorically and demonstrably NOT the case and this point is therefore, at best, irrelevant.

52. The Government is open to wider views on the criteria which should be adopted on identifying wills which should be preserved permanently. This would also apply to wills held already (for example, the will of Charles Darwin), and be determined prior to a programme of digitising and then destroying original paper will documents. It is possible that a further, more limited public consultation, will be held on the criteria/guidance for designating famous wills in due course.

Retention Period for other documents supplied for probate in support of wills

53. Another issue is the range of documents currently retained by Probate Registries. The following extract from the Record Retention and Disposition Schedule for Probate Registries (https://www.gov.uk/government/publications/record-retention-and-disposition-schedules) illustrates the scale and range of documents currently stored on a permanent basis. It sets outs a wide range of supporting documentation which may be supplied with probate applications, although in terms of legislative requirements for public inspection, only wills and codicils (A codicil is a document making an addition or amendment to a will and requires the same formalities as making a will (e.g., signing and witnessing)) need to be retained. Therefore, the case for reform of storage of wills differs from that for supporting documents and the approach to each could be different.

Unique records held by the Probate Registries
Description of records
a) Wills and grants of representation from 1858
b) Abandoned cases
c) Forms of Renunciation
d) Summons
e) Citations
f) Probate refused
g) Subpoenas

Retention policy: Keep the following permanently:
• Wills and grants of representation (including video recordings of witnessed signatures)
• Statement of Truths
• Codicils
• Renunciations (revocations)
• Probate engrossment
• Powers of attorney (or power of consent)
• Reason for delay
• Alteration of grant
• All birth, death and marriage court cases (divorce, adoption, etc)
• Deed poll
• Ancillary affidavits and witness statements
• Inventory and account of estates
• Order of domicile
• Forged wills and related paperwork
• Notarial or official copies of foreign wills
• Official copies of entrusting documents
• Notarial or official copies of certificates of inheritance Keep all other documents for 50 years and then destroy.

54. The Government would be interested in views on whether a special case can be made for preserving any of the supporting documents – for example, whether notarial copies of foreign wills should be preserved.