Following the launch of a government consultation, Helena Moore, solicitor in the Private Client team at Lodders, sets out some key considerations regarding the future of the storage and retention of original wills.

What is the current legislation around the storage of wills by courts?

Individuals and charities may wish to have access to a copy of an original will to find out whether they are a beneficiary or to challenge the validity of a will. Creditors may also wish to do so to protect their rights.

Section 124 of the Senior Courts Act 1981 confirms that: ‘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.’

In practice, this means a will remains private and confidential until it has been ‘proved’ by applying for a grant of representation. Where a judge or probate registrar finds it ‘undesirable or inappropriate’, the request for a copy would not be granted.

The legislation also states that copies of a will may be obtained from HM Courts and Tribunals Service (HMCTS) upon payment of the fee. 

The current legislation, requiring original wills to be ‘open to inspection’, has resulted in HMCTS storing wills which date back to 1858, when the Principal Registry was established.

The following issues are associated with the current system:

• high storage costs, which increase each year as more wills are added, estimated by the Ministry of Justice to be in the region of £4.5 million per annum
• practical considerations, such as finding a secure storage space to store the original documents
• storage services are outsourced, adding to costs

What are the proposals for the future of will storage?

In December 2023, a consultation was commenced by the Ministry of Justice in relation to the storage of wills, which is open until 23 February 2024. There is currently no time limit on how long original wills can be held by the courts. The consultation questions whether the current rules should be amended.

The proposals for future will storage are to make the system ‘more economic and efficient’. The consultation is seeking views on whether original wills should be held for a fixed period and whether to move to digital storage.

Considerations for storing wills for a fixed period of time:

• The length of the fixed period will need to be discussed as part of the consultation. The proposal is for original wills to be stored for a fixed period and electronic wills could be stored indefinitely. The government suggests 10 to 12 years.
• The length of time a will could be stored will be relevant for any challenges to a will.
• To provide an example of the current storage limits, probate application forms are retained for two years, however, divorce papers (Decree Nisi/Absolute) are retained for 100 years.

Considerations for electronic storage:

• Wills can be stored permanently. This will allow wills to be open to inspection, in accordance with the Senior Courts Act 1981.
• Electronic storage would reduce storage costs.
• Making and retaining digital copies of wills has been done since 2021 (as well as retaining the original).
• It could modernise the system.
• It could make the system faster than physically searching storage for an original will.
• People may prefer keeping a physical original will. The government considers there is equivalence between paper wills and digital copies, however, the consultation will be seeking views on this.

The consultation is open to suggestions on exceptions, where original wills could be stored indefinitely. An example could be the wills of historical and famous people, as they may be in the public interest. However, the consultation requests feedback on this.  

The proposal is that these alterations could be enacted by amendment to the Electronic Communications Act 2000 to allow electronic copies of wills to be stored or by primary legislation. Primary legislation would take longer, however it would allow debate and scrutiny of the proposal. This is another question in the consultation. 

The consultation queries whether the current legislation relating to the storage of wills is satisfactory or whether it should be reformed.

How can you respond to the future of will storage consultation?

For information regarding the consultation and to see the full questions, please visit GOV.UK.

Responses should be sent by 23 February 2024 to either:

Email:

civil_justice_poli@justice.gov.uk

Address:

Will Storage Consultation

Ministry of Justice

Civil Justice and Law Division

Postpoint 5.25

102 Petty France

London

SW1H 9AJ

A summary of responses will be published in Summer 2024.

About the author

Helena Moore is a solicitor in the Private Client team at Lodders Solicitors. She works on a broad range of matters, including wills, probate, and Lasting Power of Attorney matters.

See also

Place a deceased estates notice

The duties of an executor: what to do when someone dies

Find out more

Storage and retention of original will documents (GOV.UK)

Senior Courts Act 1981 (Legislation)

Electronic Communications Act 2000 (Legislation)

Images

Getty Images

Publication date

6 February 2024

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.