Wills consultation December 2023

[Stuart]

I can't submit as I don't have English citizenship,

I can't find any rule that says that's the case, or even any statement on the subject of nationality being a qualification - or not. No doubt it would lead to some submissions being ignored, but most likely that would depend on the context.

In particular, if you want to suggest that you (and others outside the jurisdiction) have a right of ownership based on being a descendant, I think that would have to be accepted. You could make the point that for some wills all the descendants are abroad. And estate administration, including probate, is an area which has always had to deal with parties all over the world.

 

[peter]

Some kind of quick and simple alternative is needed, if anyone can think of one.

Auctions work well.

 

[uncle024]

An interesting discussion so far, which already addresses on of my concerns. That is the destruction of records that is already taking place. A case in point, is in para 45, Decree Nisi and Decree Absolute (official divorce records) 100 years. Divorce records can be important for family history research, if only to see if a person is a bigamist! I can see no reason why they should not be digitised and indexed. Notably ScotlandsPeople has an online divorce index from 1984.

The justification of the destruction of the original wills is a figure of £4.5 million annually for storage. No figure is given for the storage of the records digitally including an off-line backup system. No information is given for the income from the sale of digital copies. I do wonder if the real reason is that the probate service would like to fully digitise and accept digital scans of Wills during the Probate process but the current rules say they must have physical copies.

If after scanning the originals are destroyed, then my current example will never have a happy ending. In early December I applied for a copy of a Will for a person who died in 2001. The image I received has the first page of the Will, but the second page is from another Will. I have logged a complaint and await a reply! An example of a good reason to keep physical copies.

 

[Pauline]

One thing I wasn't clear on from the consultation document is whether the plan is to digitise the original wills, the office (registered) copies or both. With more recent wills the office copies are likely to be a scan or photocopy of the original, but earlier ones are typed or handwritten copies, and however carefully checked, could potentially contain errors. From experience, when you order a will it is likely to be a copy of the office copy, so is it those that are being digitised? It would seem unwise to digitise typed or handwritten copies and then destroy the original wills.

 

[peter]

whether the plan is to digitise the original wills

The word 'original' appears 52 times in the consultation - I think it's reasonable to assume that they are talking about the original documents.

 

[Pauline]

The word 'original' appears 52 times in the consultation - I think it's reasonable to assume that they are talking about the original documents.

Yet the digitised copies issued now are generally of the office copies, so are they planning to abandon those in favour of newly digitised copies of original wills? I may have missed it, but I didn't spot anything within the document which made a clear reference to office copies of the wills. Are these to be destroyed along with other paper will documents?

 

[peter]

No figure is given for the storage of the records digitally including an off-line backup system.

Nor do they give a figure for the cost of scanning. However these numbers probably aren't relevant since they will almost certainly be incurred whether or not the originals are retained.

 

[uncle024]

Yet the digitised copies issued now are generally of the office copies, so are they planning to abandon those in favour of newly digitised copies of original wills? I may have missed it, but I didn't spot anything within the document which made a clear reference to office copies of the wills. Are these to be destroyed along with other paper will documents?

According to the gov.uk website “You’ll need to send the original will with your probate application - you cannot use a photocopy. The probate registry will keep the will and it’ll become a public record.”

Maybe we need to clarify the process? Is it as follows? Executor sends original Will to gain Probate. Probate is Granted, Original Will is digitised which is the copy we can purchase for £1.50. Original physical Will is stored for ever by Probate.

 

[ChalfontR]

I've seen quite a few responses saying that "ALL" official documents should always be kept for ever. I would suggest that argument isn't going to be taken very seriously - the vast majority of documents the government, and other official bodies, produce are routinely destroyed after a very short time and that has always been the case. Archival storage for documents is a very expensive option, as this case has revealed.

When objecting to this proposal, as I think we all should - make sure you concentrate on why these particular documents should be kept - that will carry much more weight.

 

[peter]

According to the gov.uk website “You’ll need to send the original will with your probate application - you cannot use a photocopy. The probate registry will keep the will and it’ll become a public record.”

Maybe we need to clarify the process? Is it as follows? Executor sends original Will to gain Probate. Probate is Granted, Original Will is digitised which is the copy we can purchase for £1.50. Original physical Will is stored for ever by Probate.

Unless the system has changed recently, one or more of the executors have to attend in person.

 

[Pauline]

The last time I was an executor was in 2016, and as well as sending in the original will, we had to send in 3 copies of it. I did not have to attend in person but did have swear the oath in front of a solicitor.

The probate registry has always considered it adequate to supply a copy of the office copy of a will when a copy is requested. These days the office copy will almost certainly be a scan or a photocopy of the original will, so subject to missing edges etc, there is essentially no difference. But, as mentioned above, for older wills the office copy will be a typed or handwritten copy of the original will.

 

[cfbandit]

Perhaps the best people to have the originals - once they have been scanned in colour and independently checked - would be the descendants of the testators?

Agree, but I think it really depends. Most people would have zero interest in holding those documents (in fact many would be an "ugh"), but to a genealogist or family historian? They would be immensely valuable to me.

 

[peter]

Agree, but I think it really depends. Most people would have zero interest in holding those documents (in fact many would be an "ugh"), but to a genealogist or family historian? They would be immensely valuable to me.

Precisely - and if nobody wants them band they bare disposed of, that's also fine. Indeed, isn't that how it works with family records? Some show up on eBay, some end up in the recycling, and a few are treasured by people like us.

 

[peter]

LostCousins members have entered over 8% of the inhabitants of England & Wales in 1881 - and most of them have been entered by just 10% of the members. The chances are that LostCousins members have a family connection to at least half of the testators.

 

[Stuart]

The exact process has changed since 1858, probably more than once, partly due to the use of typewriters, copiers, and digital machinery. I tried to get hold of the original act (An Act to amend the Law relating to Probates and Letters of Administration in England - short title the Court of Probate Act 1857) but it's not in Legislation.gov.uk. Presumably that's because it has all been repealed.

There is a copy (a set of 33 page images) hosted by Durham University Library's North East Inheritance project. The project is mainly about their holding of pre-1858 probate records, and is a useful source of information on those. This copy of the act is about all they have for post-1858. There is just one short section (LXVI) on keeping wills, in page 17:


There is no time limit given for preserving wills, and presumably none has been legislated since, hence they are still being kept (allegedly). This section suggests most original wills would have been kept in district probate registries, many of which have been closed (but some still exist, with limited functions). So why the online service mostly gives us digitised copies of extracts still needs explaining.

 

[Pauline]

In the old days, when you applied for copies of wills by post, and the copies were sent out by post, it was always a copy of the office copy unless you specifically requested a copy of the original will. By making a specific request, I do have copies of some original wills, but once or twice I was told this wasn’t possible. As far as I’m aware there is no provision for requesting a copy of an original will with the online ordering.

I guess my reason for raising the issue of original wills and office copies, is that in many ways they seem to be treated as equivalent documents. After all, when probate is (or was) granted, the executors do not act using the original will, but a copy sent out to them with grant of probate.

 

[Stuart]

I guess my reason for raising the issue of original wills and office copies, is that in many ways they seem to be treated as equivalent documents. After all, when probate is (or was) granted, the executors do not act using the original will, but a copy sent out to them with grant of probate.

Actually I think I do know why that is. The service exists to meet the legal requirement for public access only for the purposes the MoJ sees as valid: the administration of estates and other legal activities (like challenges). And even the 1857 act says that public access can be provided by a copy.

Historical wills (and/or their copies) are included in the service because no age limit has ever been fixed for wills to be accessible. The fact that these old wills are of no interest to executors or lawyers, but are to us - a different set of people, and for different reasons - has not been taken into account. I'm sure they know, but the proposal in the consultation is very narrowly based on the official reason for the service - as if they don't know.

So we all need to tell them, so they can't say they don't know, or think it's only important to a few people who can be safely ignored. A bit of adverse press would help, too!

 

[peter]

I guess my reason for raising the issue of original wills and office copies, is that in many ways they seem to be treated as equivalent documents

Legally they are equivalent, just as a BMD certificate from the local register office is legally equivalent to a certificate from the GRO.

 

[Pauline]

Legally they are equivalent, just as a BMD certificate from the local register office is legally equivalent to a certificate from the GRO.

Which goes back to the point I was raising. As I mentioned earlier the consultation document makes no specific reference to office copies, but since currently it is the office copies which are being digitised, can we be sure that the original wills are going to be digitised as well before being destroyed?

Although the format has likely changed over time, office copies will be a standard size and shape, whereas original wills come in all shapes and sizes. Whenever I’ve had paper copies of office copies, they were always on A4, but mostly original wills were done on A3, with just the grant on A4. So digitising office copies is likely to be easier, quicker and cheaper.

 

[peter]

since currently it is the office copies which are being digitised, can we be sure that the original wills are going to be digitised as well before being destroyed?

It's certainly something to put in your response, along with the importance of scanning in colour. But I have also sent an email to the MoJ asking for clarification on both points.