Proposal to destroy original wills dropped

Following a government consultation on the long-term storage of wills in England and Wales, the Ministry of Justice has announced it will retain all original wills after opposition to their proposed destruction.

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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.

What were the proposals for the future of will storage?

In December 2023, a three-month consultation was commenced by the Ministry of Justice in relation to the storage of wills. There is currently no time limit on how long original wills can be held by the courts.

The consultation questioned whether the current rules should be amended due to the following issues associated with the current system:

  • storage costs, which increase each year as more wills are added, are 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

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

  1. Original wills to be stored for a fixed period of 10 to 12 years (other than the wills of “famous people”, which would be indefinitely preserved).
  2. Electronic wills to be stored indefinitely.

The proposal was 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.

Why were the proposals for the future of will storage dropped?

The consultation received nearly 1,600 responses, with a wide range of stakeholders, including genealogists, legal professionals, archivists, and members of the public. While the digitisation of wills was supported by some respondents – predominantly as it would improve the accessibility of wills, especially to the public – most responses strongly objected to discarding original paper wills.

As well as the deep attachment many responses had to original historical records, there were also concerns about the reliability of digital alternatives. Respondents highlighted issues such as:

  • the risk of errors due to the reliability of scanning
  • potential obsolescence of digital formats
  • the vulnerability to cyberattacks

During the consultation, many legal professionals expressed the value of paper documents for forensic analysis in contentious cases, while critics also expressed disapproval of the proposal to preserve only the wills of notable figures, fearing it was not only elitist but also impractical.

What is the future of original will storage?

While summarising the consultation, the Ministry of Justice concluded: 'In the light of the responses to the consultation and the concerns raised, the government has decided that it will not pursue any reform that involves the destruction of original will documents.’

The decision does effectively shelve any plans for the digitisation of older wills, beyond the current practice of digitising wills submitted since 2021 (or upon request). However, the paper concludes that the government will 'be giving further consideration to the fees charged for copies of wills and grants of probate' to cover the costs of the archive.

See also

Place a deceased estates notice

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

What are the death certificate reforms?

Can you read wills made by the Royal Family?

Find out more

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

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Publication date

13 January 2025

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