15 January 2014

Pets, Probate and Privacy

'More Americans Are Writing Their Pets Into Their Wills - Leaving Thousands of Dollars for the Care of Animals' in the 12 January Wall Street Journal reports that
As of 2012, 68% of U.S. households owned pets, up from 62% in 2010. Among cat owners, 9% had made financial provisions in their wills for their animals, up from 6% in 2010, according to the American Pet Products Association, which represents manufacturers of pet food and other products. From 2010 to 2012, the percentage of dog owners making such arrangements rose to 9% from 5%. 
No indication of course as to whether the American Pet Products Association data is representative.

'Wills as Public Documents - Privacy and Property Rights' by Joseph Jaconelli in (2012) 71(1) The Cambridge Law Journal 148 comments
It is a long-established legal rule that the contents of a will, once it is admitted to probate, are available for inspection by any member of the public. This article is the first examination of this remarkable rule, its possible rationales, and its attendant disadvantages. Particular attention is paid to the problems of the ensuing loss of privacy. Legislative attempts to limit open access are considered together with non-legislative devices used for the same purpose: the secret trust; and applications for the sealing of a will (a device especially prevalent in the case of royal wills).
Jaconelli notes that
A long-standing feature of certain national newspapers has been a regular column which gives a brief summary of the wills of recently deceased persons. Those who are selected for inclusion in these columns will have been distinguished in life by fame or wealth (or both). Each entry typically gives the value of the estate together with some details of the main bequests. The affairs of those who were neither famous nor rich also attract the attention of the press, but do so more sporadically on the basis of such factors as strikingly unusual testamentary dispositions. The same range of materials is also to be found in local and provincial newspapers. What these lack in circulation figures by comparison with the national press is more than offset by the greater likelihood that the testator and the beneficiaries under the will are personally known to the readers. Such material, irrespective of its form, has been an aspect of the content of newspapers for so long that it scarcely provokes a second thought. Yet, on reflection, its presence calls for some explanation and justification since it involves disclosure to the public of the contents of a document that lays bare the closest emotional ties that the testator will have formed during his or her lifetime. In the legal systems that are based on the common law, characterised as they are by freedom of testamentary disposition, there is the greatest scope for testators to give expression to those emotional ties. This stands in marked contrast to the forced heirship regimes that are characteristic of civil law systems (for instance), where a person may freely dispose by will of only some fraction of his total estate. In these there must necessarily be a correspondingly reduced interest in disclosing the contents of a will. 
In reporting the contents of wills the press is merely availing itself of a facility that is open to all. In English law the basis of that entitlement is section 124 of the Supreme Court Act 1981 (as amended):
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 and directions given in accordance with. ... 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.
The general right of access is qualified by the probate rules in question: namely, the Non-Contentious Probate Rules 1987. Rule 58 stipulates that a will or other document referred to in section 124 “shall not be open to inspection if, in the opinion of a district judge or regis- trar, such inspection would be undesirable or otherwise inappropriate”. No criteria, it should be noted, are provided on the basis of which inspection of a will might be deemed neither desirable nor appropriate. In addition, section 125 of the Supreme Court Act provides a facility whereby, subject to the payment of an administrative fee, an applicant is entitled to be supplied with a certified copy of any will that is open to inspection. 
The existence of the right of access, in whatever form, is remarkable enough. That the personal information capable of being gleaned from such searches may be freely disseminated to a mass readership calls for particularly compelling justification. Yet in the very substantial literature on privacy it is impossible to find more than a few lines on the subject of the inspection, and publication of the contents, of wills. The Younger Committee on Privacy has given it the most attention. The Committee viewed the statutory availability of wills to applicants as falling within the public sector, and hence outside its terms of reference. On the separate issue of disclosure of their contents by the media, it saw no stronger case for restricting such accounts than it did for restricting further dissemination of any other information that was publicly available. In this regard the Committee went against the findings of a survey that it had commissioned on how various institutions and phenomena that impinge on the privacy of individuals (for example, credit rating agencies and closed circuit television) were perceived by the public. Under the heading “Publication of Will”, 77 per cent. of those canvassed were of the opinion that this was an invasion of privacy while 71 per cent. believed that it should be prohibited. Clearly, then, opinion is divided on the question of public access to the contents of wills. The purpose of this article is to assess the arguments in favour of publicity and privacy respectively.