The Ministry of Justice’s Proposed Destruction of Original Documents

Please read (or scroll) to the end where you will find important information about what you can do to bring justice and help save original wills and probate documents from destruction.

Copy of Grant of Probate for George HOLT (1852-1940)

Wills – Registered Copy vs Original Copy:

In May 2023, I started research for my talk on ‘Freedom of Information for Genealogy’. I had recently learnt that post-1858 original wills (or at least some of them) were retained by the High Court and held by HM Court and Tribunal Service (HMCTS). The records are housed at the Probate Records Centre in Birmingham. When requesting a copy of a will via the Government’s Probate Search Service, you are usually provided with a copy of the registered copy of a will, rather than a copy of the original will itself. Copies of original wills are available for those that have been proved since 2021.

So why does it matter if we receive a registered copy of a will, or a copy of the original will itself? Well, the answer is simple and I refer you to the blog post of my esteemed colleague, Dave Annal: ‘The Original and Best’. Dave’s blog post refers to pre-1858 original wills and registered copies, but the principles are the same.

Why should I seek out an original will?

Some of the reasons for accessing copies of an original will might include:

• The need to compare the original signatures of either the testator or one of the witnesses. This might help identify the correct John Smith out of a number of candidates by analysing their signatures. This is not possible to do with a registered copy which does not include original signatures. This is probably one of the main benefits of viewing the original will. My clients sometimes wonder why I insist on collecting signatures from various documents, but they soon see how essential this is when it helps to map out various people of the same name, in the same area, around the same date!
• There may be copying errors, and it will be easier to see where there are any interlineations or deletions which will be reformatted in the registered copy. Sometimes the interlineations and deletions help tell us additional information about the testator, their lives and relatives.
• There may be additional notes that are present on the original will, but were not required to be transcribed on the registered copy. Dave gives some excellent examples in his blog!

Registered Copy of Will of George HOLT (1852-1940) NOTE: There are no original signatures.

Attempts to Access an Original Post-1858 Will:

I wanted to try and demonstrate the benefits of accessing an original post-1858 will by comparing it to the registered copy. I sent a Freedom of Information (FOI) request to HMCTS requesting the original will of my 3x Great-Grandfather, George HOLT (1852-1940). You can read my FOI request and the resulting correspondence here. The information available to me at the time led me to believe that original wills were not reasonably accessible by other means, so a FOI request seemed like the best option. The Ministry of Justice (MoJ) responded to my request as “HMCTS is an executive agency of the MoJ and falls within its remit for the purposes of FOIA.”

To summarise a long and complicated exchange, the MoJ refused my request stating that “[original] wills [do] not fall under the Freedom of Information process.” I was advised to contact a District Probate Registry who may be able to help me. Under current legalisation, original wills are private legal documents until probate has been granted, at which point they become a public document.

Right of Appeal:

I requested an internal review from the MoJ and then made a complaint to the Information Commissioner’s Office (ICO) which resulted in the publication of Decision Notice IC-242885-P6K8.

The ICO effectively agreed with the MoJ and seemed to suggest that original wills were exempt under section 32 of the FOIA by virtue of being ‘court records’. The ICO quoted the MoJ as follows:

“Courts are not public authorities for the purposes of the FOIA. As such, information held by the courts, or held by a public authority on behalf of a court, is not within the scope of the Act”.

ICO Decision Notice IC-242885-P6K8

I appealed the ICO Decision Notice and my Notice of Appeal has been accepted by the First-Tier Tribunal. This case is yet to be heard. Information Rights is a complicated area of law and I do not profess to be an expert and have no legal training, but to highlight just one point:

1. Under the FOIA, a section 32 exemption does not apply to historical information by virtue of section 63(1).

The Decision Notice issued by the ICO appears to rely, in part, on a section 32 exemption when it states:

“…courts and inquiries are not subject to FOIA”

ICO Decision Notice IC-242885-P6K8

The ICO further explains:

“…that FOIA only applies to the information held by public authorities for their public authority functions: It does not apply to courts and tribunals. As such, information held by the courts, or held by a public authority on behalf of a court, is not within the scope of the Act.”

ICO Decision Notice IC-242885-P6K8

This is in direct contradiction to the ICO guidance which is referred to in the Decision Notice itself and which states:

60. Section 63(1) of FOIA specifies that section 32 can’t be applied to the information contained in a historical record.

61. Originally, a historical record was one over 30 years old, or if forming part of a file, the last entry on that file had to be over 30 years old.
62. This 30-year time limit has now been amended to 20 years by the Constitutional Reform and Governance Act 2010.”

According to section 63(1), the information in question; an original will which was proved on 11 July 1940, is not exempt under section 32.

What about the Public Records Act?

The Public Records Act 1958 (PRA) was substantially amended in 1967, and then again in 2000 when the Freedom of Information Act 2000 introduced further significant changes which came into force in 2005. The National Archives explains that:

“In January 2005, the Freedom of Information (FOI) Act replaced those parts of the Public Records Act that related to access to records.”

The National Archives

Indeed, the case of Kennedy v Charity Commission made reference to the PRA when it stated:

“…if the document is one that ought to be publicly preserved, that it [the exemption in section 32 of the FOIA] lasts for up to 30 (or in future 20) years under the Public Records Act 1958, section 3 as amended for the future by the Constitutional Reform and Governance Act 2010, section 45(1).”

In the case of original wills, section 5(5) of the PRA provides the legislative basis for access to the documents:

“…as respects all public records in places of deposit… outside the Public Record Office [now The National Archives]… arrangements [are] to be made for their inspection by the public comparable to those made for public records in [The National Archives].”

So why then are there no arrangements for public access to original wills?

In a press release dated 4th February 2002, Dame Elizabeth Butler Sloss, President of the Family Division of the High Court, said:

”There is a statutory requirement to store [probate] records in perpetuity. This splendid new Centre in Birmingham will make an excellent home for the records and will provide an accessible and efficient service to the public.”

Dame Elizabeth Butler Sloss

The House of Commons Library Research Briefing entitled ‘Obtaining a copy of a will’, states:

“When a grant of probate has been issued, a will becomes a public document and anybody can apply to have a copy of it.”

Why do HMCTS/MoJ, or indeed the High Court, fail to provide a method by which the public can access copies of original wills dating from 1858-2020?

In effect, the MoJ consultation seeks to makes changes to the legislation that, by all intents and purposes, it fails to adhere to in its current format. If this were not the case, I would have been provided with a copy of George HOLT’s original will!

If the FOIA does not apply to original wills, the MoJ/HMCTS could have disclosed a copy of the original will ‘outside the confines of the FOIA legislation’.

Example Case Study:

To provide an example, I was searching for the records of a Cottage Hospital in Oxfordshire. I was researching an individual who had given birth at the hospital’s maternity ward and who had been in and out of various Mental Hospitals, seemly suffering with post-natal depression which wasn’t very well understood at the time. The Oxfordshire Health Archives, an exceptionally valuable resource, told me that no records for the hospital were known to survive.

I traced a paper catalogue of the hospital’s archives that had been drawn up in the 1970’s by the then archivist. This provided me with the location of the records at that time and I made a FOI request to the current NHS Trust in that location. The response I received from the Trust was as follows:

“…we consider that under the limitations of the Freedom of Information Act 2000 the record is exempt under Section 41 duty of confidentiality.

That being said, given the nature of your request and the limited historical information being requested and who it is being requested for, we have decided to disclose a copy of the entry to you outside the confines of the Freedom of Information Act 2000 legislation and without setting a precedent in relation to other historical records in future cases.”

Buckinghamshire Healthcare NHS trust

Why could the MoJ not provide a similar response, given that legislation provides public access to original wills? The statutory powers of public access are preserved by the FOIA under section 78.

Once again, I have no legal training or background, but it seems that something doesn’t quite make sense regarding the MoJ’s and ICO’s claims.

The Ministry of Justice’s Consultation:

It was with great surprise, on 15th December 2023, when I received an email from Dave Annal simply asking: “Have you seen this? https://www.gov.uk/government/news/easier-access-to-historic-wills-under-new-government-plans”

Dave had forwarded a link the press release from the MoJ announcing their open consultation entitled ‘Storage and retention of original will documents’. Rather ironically worded considering the proposed destruction of those documents!

I initially failed to grasp what exactly was being proposed as I was spending a busy afternoon with my children. I had only briefly skimmed the press release. When I had time to fully read and digest the full information, my heart began to pound and a feeling of fear and horror washed over me. Were my eyes playing tricks on me or did I read that the MoJ were proposing the destruction of millions of original documents?

Sadly, the proposal was true and the only tricks were the thoughts and questions that came to mind:

• Is the press release purposefully masking a negative with a positive? [Increased access via digitisation vs the abhorrent destruction of documents.]
• Was the consultation released right before the holiday season in an effort to quietly slip it through the net?
• Had the MoJ fully considered the costs of digitisation and digital preservation? Justice Minister Mike Freer claimed that the proposal was to “save the taxpayer valuable money” as though it has a direct impact on our individual finances. Was Freer trying to make it more personal rather than what I believe he means, i.e. ‘save valuable taxpayer money’.
• Had any thought been given to the consultation at all, or was it just a way of trying to deal with the MoJ’s failure to provide access to original wills under the current legislation and in a manner that is ‘reasonably accessible’?

The Cracks Start to Appear and Turn into Gaping Holes:

The more I looked at the press release and consultation, the more holes started to appear… including statements that were entirely false. Let me share an example with you. Mike Freer stated in the press release that:

“If people wish to access these wills or documents, they must apply and wait for them to be removed from storage and digitised so a copy can be sent out. This process can take weeks.”

Mike Freer, Parliamentary Under-Secretary of State for Justice

The case study document on Iron Mountain’s website; the third-party that provides the copying and delivery service, shows this statement to be entirely false:

“Our SLA [service-level agreement] target is to deliver wills within five days from point of order. Since moving to Iron Mountain InSight®, we’ve seen average delivery time for both paper-based and digital wills reduce to just three days.”

This quote is in fact attributed to Stephen Burgess of HMCTS. Does the left hand not know what the right hand is doing?

Iron Mountain: HMCTS delivers easy-to-use will and probate search service with iron mountain insight on AWS

What other statements in the press release and consultation might be proven as demonstrably false?

I probably don’t need to point out that there are many other examples!

But I will leave you with one more…

The consultation document states:

“An Impact Assessment has not been prepared for this consultation paper as the proposals are unlikely to lead to additional costs or savings for businesses, charities or the voluntary sector, but will bring savings for the public sector (HM Courts and Tribunals Service).”

Storage and retention of original will documents, 15th december 2023

How can this statement be true when the cost of digitisation and the additional ongoing cost of digital preservation have not been fully estimated? That’s without mentioning the fact that there will still be storage costs as well as costs related to the destruction of the records themselves.

Climbing the Iron Mountain:

For those of you that remember the upgrade to the Probate Search Service, I’m sure you have every confidence in Iron Mountain’s ability to provide an ‘easy-to-use will and probate search service’. Do you detect my sarcasm?

When the upgrade was first released, it was fraught with issues… so much so that Dave Annal created a video guide for the non-idiot with tips on searching. Dave perfectly summed up the service as “…the clunkiest, most unintuitive website that has ever been my misfortune to use.”

Iron Mountain used technology that “converted 870,000 pages [of the National Probate Calendar] into rapidly searchable records over an intensive two-week period.”

They stated: “…search results might contain a list of names, which website users would have to physically trawl through for the correct will.”

Bad luck if you’re looking for a Smith! All pages that contained ‘Smith’ in some form were delivered in search results; Smithers, Smithson; even Smith Street and Blacksmith!

I think Dave finally found an example where ‘Ancestry do it better!’

I certainly don’t have faith in what Iron Mountain call the “tech magic” that “happens behind the scenes.”

Guidance from The National Archives on Digitisation:

I thought it would be wise to make some comments regarding The National Archives’ guidance on digitisation. I thank Janice Tullock for providing me with the link to this guidance. The below quotes are lifted from the guidance and speak for themselves:

“Where departments choose to digitise records, for whatever reason, both the original record and the digitised version are public records and so must be disposed of under the terms of the Public Records Act (PRA). Before embarking on any digitisation project, The National Archives (TNA) would recommend that plans are shared with The Advisory Council on National Records and Archives (ACNRA), to help the Departmental Records Officer (DRO) ensure independent oversight and that all relevant guidance is followed. This is particularly important if:

• the intention is to destroy original records…

• the benefits to the public purse of digitising records with either very high or very low selection rates are unclear

[Note: Only parts of two of the four bullet points provided in the guidance have been copied here.]

“In exceptional cases (e.g., irreversible deterioration or contamination of original paper records), if a department intends to digitise selected records and destroy the originals, prior agreement should be sought from TNA and ACNRA. The DRO must ensure that the full content and context of the original record is captured, that all text is included and legible, and that the entirety of the document can be seen with no information missing. There must be proper control and oversight of the process and a clear and demonstrable chain of custody, to ensure that the digitised version would be adequate should it need to be presented as evidence in a court of law or to an official Inquiry.

Alongside any consideration for digitising paper records, TNA would recommend that departments have a comprehensive appraisal policy and a TNA-agreed transfer plan covering records of all formats. Risks of non-compliance with the PRA should be added to the corporate risk register and senior leadership made aware of escalation routes via TNA or ACNRA.”

The guidance itself goes into much more detail.

I believe it is safe to say that much information would be lost with the current standard of digitisation used by Iron Mountain. You only need to look at the email that I sent to Iron Mountain on 22nd August 2023 in relation to a will proved on 24th June 2022. How long would the missing page have gone unnoticed had I not ordered a copy?

Email: Missing Page from Will – Richard Holt to Iron Mountain, 22nd August 2023

Justice for Wills and Probate Documents:

There’s much more that could be said, but the biggest question is:

What can we do about the proposals in order to #SaveOurWills?

I have created a list of three actions you can take, and I would encourage you to do all three if possible. There are likely other actions that may help make a difference, or at least raise awareness, such as contacting your local MP. This is not an exhaustive list.

1. Respond to the MoJ’s consultation!

Anyone anywhere in the world can respond to the consultation and share their views.

The destruction of probate documents affects researchers and interested parties worldwide. Only yesterday I had someone share: “Like many Australians and New Zealanders, I have many UK ancestors who died and left wills.”

Responses must be sent by 23 February 2024 to:

Will Storage consultation
Ministry of Justice
Civil Justice and Law Division,
Postpoint 5.25
102 Petty France
London
SW1H 9AJ

–– or —

Email: civil_justice_poli@justice.gov.uk

2. Sign the petition to UK Government and Parliament if you are a British citizen or a UK resident!

[Note: The petition has reached maximum signatures prior to approval. You will be able to sign the petition once it had been approved. If the petition is rejected, I will reword and resubmit where possible.]

Note: The House of Commons Petition Team claimed the wording of the petition went against the standards, found here: https://petition.parliament.uk/help#standards. I have to disagree with this, but in the interest of time and not debating about wording for weeks, I accepted the suggested changes. I responded to the Petitions Communications and Engagement Manager on 9th January 2023 as follows:

“I am happy with the proposed changes. The changes are probably the best wording possible, despite the fact that they don’t completely convey what the consultation is suggesting, as it is wider than original wills. This is why I was specific with my wording when I chose to use “original documents”. In fact, all of the proposed changes have been turned into a matter of debate, despite the fact that some points can be demonstrably proven beyond reasonable doubt. I guess debate is the main purpose of a petition, so please publish the petition with the proposed changes.”

The petition can be found here where you will find the updated wording. The original wording as submitted can be found below:

“Stop the Ministry of Justice’s proposal to destroy original wills. #SaveOurWills

Please #SaveOurWills! The MoJ proposes to digitise and then destroy original wills after a fixed period of time. We call for the original documents to be preserved in perpetuity in line with current legislation. Do not agree to legislative changes that would allow the destruction of these documents.

1. Costs of digital preservation and storage could be astronomical.
2. The loss of digital files is much more likely than the loss of physical documents, for example via file corruption and cyber attacks.
3. Flaws and errors made during the digitisation process are inevitable.
4. The proposed changes to legislation may set a detrimental precedent for the destruction of other archive collections.
5. Physical documents provide additional information, such as the materiality of the documents.”

3. Share both the consultation and petition and encourage everyone you know to respond and sign!

We really need to unite as community of interested parties to achieve the best possible response. Please share the consultation and petition links far and wide! Share them via email, on your social media, tag your friends and acquaintances, tell your hairdresser, dog walker, family member.

Please use the hashtag #SaveOurWills when posting on social media. This will hopefully help raise awareness.

Links to Share:

https://www.gov.uk/government/consultations/storage-and-retention-of-original-will-documents

https://petition.parliament.uk/petitions/654081/sponsors/new?token=ibI6PfzWelv1lyB_NRyd

Final Words:

The below is adapted from Lemony Snicket, The Penultimate Peril:

“The burning of a [will] is a sad, sad sight, for even though a [will] is nothing but ink and paper, it feels as if the [memory of the will’s testator is]… disappearing as the pages turn to ashes… [and] blacken and curl as the flames do their wicked work. When someone is burning a [will], they are showing utter contempt for [the testator] that produced [it], all of [their life’s] labor that went into its words and sentences, and all of the trouble that befell [them]…”

Adapted from Lemony Snicket, The Penultimate Peril

#SaveOurWills