Outrageous … and must be utterly rejected

RESPONSE TO OPEN CONSULTATION:
STORAGE AND RETENTION OF ORIGINAL WILL DOCUMENTS
Published 15 December 2023

Introduction

I have a number of significant concerns about the proposals outlined in the consultation paper. These concerns and my opinions regarding the proposals are based on more than 40 years of experience of using these records, both as a professional researcher and as an enthusiastic hobbyist researching the story of my own family. I was formerly the Principal Family Historian at the National Archives and I am a Fellow of the Society of Genealogists and of the Royal Historical Society.

My overarching feeling about the consultation paper is that it has been written by someone who has very little understanding of how these records are and have been used by researchers over the years. The references to the ‘sentimental nature of probate and wills’ (paragraphs 32, 44 & 50) miss the point by some distance. Wills are an essential source for historians of various disciplines (including genealogy, local history and social history) and although there is a degree to which sentiment may be seen to play a part, their importance as a historical source goes much deeper than this.

The proposals also go against two crucial archival principles:

1) that digitisation is not equivalent to preservation – that a digitised collection can never replicate or replace a collection of documents

2) that collections of wills and other probate documents going back to the 14^th century (and occasionally earlier) are held in record offices across the country and that these collections are preserved as discrete collections – the idea of selecting certain documents from the collections for permanent preservation while destroying others is anathema

I should clarify that I am strongly in favour of the digitisation of archival documents as a means of improving access to the records and of helping to conserve the originals.

My responses

Question 1: Should the current law providing for the inspection of wills be preserved?

See Q2 below.

Question 2: Are there any reforms you would suggest to the current law enabling wills to be inspected?

There are several areas in which the means of access needs to be improved. It is currently virtually impossible to access the original copies of wills proved in England and Wales since 1858. Access to the court (i.e. registered) copies is satisfactory. The cost is more than reasonable and delivery times are excellent but the quality of the digital scans is generally poor.

Question 3: Are there any reasons why the High Court should store original paper will documents on a permanent basis, as opposed to just retaining a digitised copy of that material?

See Q4 below.

Question 4: Do you agree that after a certain time original paper documents (from 1858 onwards) may be destroyed (other than for famous individuals)? Are there any alternatives, involving the public or private sector, you can suggest to their being destroyed?

There are several reasons why these documents should be stored on a permanent basis:

1) Digitisation can never wholly replace a collection of paper (or other hard copy) documents. It is inevitable that mistakes will be made during a digitisation process; twenty or so years’ experience of working with digitised document has made this very clear to me. In my daily work as a researcher, I frequently require access to original documents where the digital copy is illegible, deficient in some way or entirely missing.

2) The material culture of documents is important. The paper that the wills are written on, the ink that they’re written with, the way that they’re folded, the tape that they’re tied up with, the wax that they’re sealed with – all of these can tell us so much about the people involved in their creation and the society in which they lived. Digitisation without preservation of the originals destroys all of this contextual and physical evidence.

3) We don’t know what future technologies may enable us to do with paper documents. There may be ways of extracting information from them that are currently inconceivable to us in the same way that our current ability to extract DNA from organic material to tell us about the past would have been entirely unimaginable 50 years ago. Also the recent digital recovery of the text from the Herculaneum Papyri and the work carried out by the 2022 Project team at the Irish National Archives to recover documents ‘destroyed’ in the 1922 fire at the Four Courts Building in Dublin should teach us important lessons about what might be possible in the future.

4) Digitisation (combined with destruction of original documents) carries enormous challenges with it. There are many well documented examples of digital technologies becoming obsolete after a very short space of time. Paper and parchment (particularly pre-20^th century paper) have a much better record of long term survival – archives up and down the country have collections of paper and parchment records dating back to the early centuries of the last millennium. In contrast many digital projects dating from the 1970s and 1980s are now effectively inaccessible.

5) As the recent cyber-attack on the British Library has shown, digital records are highly vulnerable to hackers.

Given all of these points, any decision to switch to an entirely digital system can be seen as foolish at best and is in many ways morally negligent. It is the duty of a government to preserve the written record of its people for future generations. Destruction is permanent. There’s no way back from it…

Ideally, the documents should be transferred to the National Archives on a rolling programme, say 25 years after probate was granted.

Of course there are costs involved in this. An annual cost of £4.5 million to provide the current system is mentioned in the paper. Unfortunately no source for this figure is quoted nor is an estimated figure given for the not-inconsiderable costs of the proposed digital solution. It’s worth noting that In terms of overall government expenditure, £4.5 million is a drop in the ocean.

As an aside, there’s a very real question about whether these documents are actually yours to destroy. My understanding is that the original wills (i.e. the paper copies brought into the probate court by the executors) belong to the heirs and descendants of the testators.

Question 5: Do you agree that there is equivalence between paper and digital copies of wills so that the ECA 2000 can be used?

See above.

Question 6: Are there any other matters directly related to the retention of digital or paper wills that are not covered by the proposed exercise of the powers in the ECA 2000 that you consider are necessary?

See above.

Question 7: If the Government pursues preserving permanently only a digital copy of a will document, should it seek to reform the primary legislation by introducing a Bill or do so under the ECA 2000?

See above.

Question 8: If the Government moves to digital only copies of original will documents, what do you think the retention period for the original paper wills should be? Please give reasons and state what you believe the minimum retention period should be and whether you consider the Government’s suggestion of 25 years to be reasonable.

See above.

Question 9: Do you agree with the principle that wills of famous people should be preserved in the original paper form for historic interest?

Emphatically, no. See below.

Question 10: Do you have any initial suggestions on the criteria which should be adopted for identifying famous/historic figures whose original paper will document should be preserved permanently?

The concept of ‘fame’ is a highly complex one and the inclusion of this proposal in the consultation paper along with the reference to ‘historic interest’ are just two more examples of a clear and obvious misunderstanding of what ‘history’ is. It also suggests that the authors of the paper believe that ‘famous people’ are more important than others and that the wills of these people are somehow more deserving of preservation than others. The effect of such a selection process would be to silence the voices of ‘ordinary’ people and to give future historians a false impression of what the records were telling us about the society of the day. Only by preserving all the records from a discrete collection such as this can we start to get a true picture.

I would also like to take issue with the content of paragraph 51 in the consultation paper regarding the National Archives’ collection of ‘the wills of several famous people’. It’s unclear whether the point was made through ignorance or whether it was purposefully designed 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 (which was 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.

Question 11: Do you agree that the Probate Registries should only permanently retain wills and codicils from the documents submitted in support of a probate application? Please explain, if setting out the case for retention of any other documents.

This question, along with the text of paragraphs 53 & 54, appears to be an afterthought, tacked onto the paper when someone reminded the authors of the existence of the District Probate Registries. The language in these paragraphs and in the associated question is very different to that of the remainder of the paper. Most notably, it’s interesting that, in a consultation paper which, despite its title, is NOT concerned with retention of documents but rather with their destruction, and only mentions the words destroy/destruction four times, three of these four mentions are in this final section of the paper. It would appear that the author of the paper has either not spotted them or had by this point given up the will to live.

It is my view that the retention or otherwise of these supplementary records associated with the probate process is something which should be left to the experts; the archivists and other professionals who understand these records and whose job it is to assess them.

Conclusion

It is my opinion that the proposal to destroy these important historical documents is outrageous and must be utterly rejected. Digital copies do not provide an equivalent alternative.

Bridges Henniker, the former Registrar General, writing in 1891 about the proposed destruction of the 1851 and 1861 censuses, had this to say:

…in my humble opinion it would be very unwise to destroy National records, the value of which will probably be hereafter very great to those persons who wish to investigate the condition of the country in past times … I would point out that the value and utility of such records depends to a great extent upon their antiquity, and that documents which are as yet only forty years old have not yet reached their stage of full utility.

I implore you to embody the spirit of Bridges Henniker and to make the right decision.

Dave Annal FRHistS, FSG, QG