A version of this story appeared in the November 19 edition of CNN’s Royal News, a weekly dispatch bringing you the inside track on Britain’s royal family. Sign up here.
Here in the UK, a deep-seated debate on privacy is taking place after the Guardian newspaper announced it was taking legal action over the media’s exclusion from a hearing on Prince Philip’s will earlier this year.
In September, Andrew McFarlane, president of the High Court’s Family Division, ruled that Philip’s will would be sealed for 90 years. Among the few present was a lawyer representing the duke’s estate from law firm Farrer & Co, the Queen’s private solicitors, and the attorney general, the government’s chief legal adviser. The media weren’t told of the hearing or permitted to attend, with the public interest represented by the attorney general.
A Guardian News & Media spokesperson told CNN in an emailed statement that the High Court’s decision to ban the media from the court hearing without informing outlets or allowing them to make representations “is a clear threat to the principles of open justice.”
“It is also concerning that the court appears to believe that only the attorney general can speak to the public interest,” the spokesperson continued. “We are seeking permission to argue that the behaviour of the high court in this instance constitutes a failure of open justice and that the case should be reheard.”
According to British law, if a person prepares a will prior to their death, it becomes a public document after being admitted to probate, and anyone can obtain a copy from the Probate Registry for a fee.
However, anyone can ask the court to “seal” a will and keep it private, according to Geoff Kertesz and Judith Swinhoe-Standen from UK law firm Stewarts. “The court must be persuaded that it would be ‘undesirable or otherwise inappropriate’ to make the will public,” they told CNN. “Historically, the courts have approved such applications only for senior members of the royal family. It is unclear under what, if any, other circumstances the court might agree to keep a will private.”
One recent senior royal whose will was made public was Diana, Princess of Wales, who gave up her HRH title when she divorced Prince Charles.
Judge McFarlane said in his ruling that “it has become the convention that, following the death of a senior member of the Royal Family, an application to seal their will is made” and that “it appears that such applications have always been heard in private and have invariably been granted.”
He said it was understood that the first member of the royal family whose will was sealed was Prince Francis of Teck, the younger brother of King George V’s wife Queen Mary, who died in 1910.
Legal and royal expert Michael L. Nash told CNN: “It was Queen Mary who used these unusual royal powers and prerogatives never used before.”