You may have noticed that the Ministry of Justice (the MoJ) responded to the petition to #SaveOurWills on 1st March 2024.
While the response addressed the petition, explaining that the response to the consultation would be issued later this year, it contained a number of inaccuracies. These inaccuracies were mainly due to a copy-and-paste exercise, with sections of the petition response taken from letters issued to MPs by Mike Freer, Undersecretary of State for Justice, and Alex Chalk, Secretary of State for Justice. The response read as though the government are still seeking views on the consultation, when this is not the case as the consultation was marked ‘closed consultation’ form 24th February 2024.
The MoJ also continues to state that the £4.5 million figure is correct. This is apparently the current annual spend, yet figures given up to July 2023 do not reflect this, and in 2021/22 the annual spend dropped by around £0.2 million. These costs are discussed further below, but they cleary do not always “rise each year as more will documents are added,” as the consultation claims.
I have emailed the Petitions Committee (copied below), whose membership includes 11 MPs who are listed here: https://committees.parliament.uk/committee/326/petitions-committee/membership/. I have asked them to review the inaccuracies in the government’s response and highlighted other issues with the wording, such as the suggestion that “bank statements” and “death certificates” were also the subject of the consultation, when they were not. In summary, the response was a poorly worded cut-and-paste job, which summarised the consultation document. It does not appear that the response was checked to ensure it was accurate, but it does at least address the subject of the petition.
Box of Original Wills – Prerogative Court of Canterbury, PROB 10, The National Archives
Email to Petitions Committee:
Dear Petitions Committee,
RE: Inaccuracies in Government Response – Petition 654081
I am writing in regard to the government’s response to Petition 654081, Do not allow original wills to be destroyed after 25 years, found at the following link: https://petition.parliament.uk/petitions/654081
This response contains demonstrable inaccuracies and needs to either be updated, or a new response issued. The response itself contains cut-and-paste sections from letters issued by Mike Freer, Undersecretary of State for Justice (MoJ Ref: MC111404), and Alex Chalk, Secretary of State for Justice (MoJ Ref: MC112154). Please find these letters attached.
While I understand that the Ministry of Justice (the MoJ) may wish to use these letters as the basis of their petition response, the consultation ‘Storage and retention of original will documents’ is now closed. The petition response was issued on 1st March 2024, which is after the consultation period ended on 23rd February 2024. The MoJ’s response does not reflect this fact. It is abundantly clear that the MoJ are no longer seeking views as part of the consultation process. This is shown by the words ‘closed consultation’ and the dates and times which the consultation ran from at the following link: https://www.gov.uk/government/consultations/storage-and-retention-of-original-will-documents
The inaccuracies in the MoJ’s response are dealt with in turn below. These points were incorrect on the date of publication. I have numbered the paragraphs to help with dealing with each inaccuracy. Inaccuracies are found in paragraphs 1, 5, 7 and 9.
In regard to paragraph 4, I note that the £4.5 million figure is not correct given the information released in response to a Freedom of Information (FOI) request. This figure may also be inaccurate in the light of any additional evidence.
These inaccuracies need to be amended to ensure the response accurately reflects the current situation. If the MoJ is still seeking views, as is claimed in the response in some parts, but not in another, then it needs to provide the public with the contact details to share their views.
Analysis of Response from MoJ with Inaccuracies Highlighted:
1. The Government is currently consulting on the storage and retention of original will documents submitted with applications for probate.
This is incorrect. The consultation closed at 11:59pm on 23 February 2024. The government is now considering responses to the consultation.
2. At present all the wills and documents submitted in support of probate (legal authority to manage larger estates of deceased persons) are preserved indefinitely in the original paper form.
3. These records date back to 1858 and make for a substantial and growing archive. In total we hold around 110 million paper documents.
4. The current cost of preserving this archive is currently £4.5 million per annum.
The MoJ have not provided any evidence that the £4.5 million figure is correct, and the fact that the 2022/23 figure of £3.7 million has risen by around £0.8 million in the 5 months since July 2023 does not seem to accurately reflect trends of the last four years. For example, in 2021/22, the annual spend actually dropped by around £0.2 million from the previous year. You can find all correspondence regarding the MoJ’s disclosed spending at the following link: https://www.whatdotheyknow.com/request/information_on_consultation_stor#outgoing-1569590
Alex Chalk’s letter explains that “the background to [the] consultation paper” is based on costs, specifically quoting the cost as “currently £4.5 million per annum.” Chalk further states in his letter:
“You will understand that I have a responsibility to ensure that public money is used in the most efficient and sustainable manner, while also being sensitive to the legal and other issues that the storage of original will documents give rise to.”
The public is not satisfied that this figure is correct, and therefore, the foundation of the consultation may be based on factual inaccuracies, unless the MoJ can demonstrate otherwise.
5. Wills received since 2021 have been automatically digitised with older wills copied into digital format where a request is received to inspect a copy.
This again is inaccurate in its over simplification of what is, and what is not, digitised after an application is received for a copy. I note that both original wills and office copies are open to public inspection under Section 124 of the Senior Courts Act 1981 (SCA). Copies of the original will are provided in response to applications where the wills were proved from 2021 onwards. For wills proved prior to 2021, only the office copy is provided upon application. There is no online or paper application form to request a copy of, or to request inspection of, an original will under s.124 SCA. Office copies are exactly that, copies of wills, rather than actually being wills themselves. The original will is the only will and contains the original signatures of the testator and witnesses.
For the above paragraph to be correct, it should read:
Original wills received since 2021 have been automatically digitised, with office copies of older wills copied into digital format where a request is received to inspect a copy.
This is an important distinction and has an impact on many researchers who use wills in their work. If you wish to understand the current framework for access to wills, and its inability to comply with law as enacted in the SCA, please review my consultation response to Question 2 found here: https://holtsfamilyhistoryresearch.co.uk/2024/02/22/response-to-the-ministry-of-justices-consultation/
6. The consultation proposes a reform that would enable older wills and documents to be converted to a digital form and then destroyed after a certain number of years (25 was suggested in the paper, but views have been invited on a suitable period).
7. Responses are also being sought on whether all the documents currently submitted to support a probate application needed to be preserved (as at present) – for example bank statements or copies of death certificates.
This is incorrect. Responses are no longer being sought in regard to the consultation. This is now a ‘closed consultation’. Furthermore, there is a grammatical error; “needed” should read ‘need’. I also note that “bank statements” and “death certificates” are not mentioned anywhere in the consultation document. The consultation does mention a number of other classes of documents at paragraph 53, however the examples cited by Chalk are currently not permanently retained and do not form part of the consultation. I beg you to ask the Secretary of State for Justice whether or not he knows that inaccurate statements are contained in the letter he put his name to? These same statements are those which are copied from the letter and pasted into the petition response.
8. The consultation proposes that an exception to preserve original paper documents should be made for famous and noteworthy people, and views were sought on suitable criteria – although it was acknowledged that there may need to be further, more specific, consultation at a later date on that proposal, were it to proceed.
There are no inaccuracies here. The wording “views were sought” accurately reflects the fact that the consultation is closed. I note that in this case, the Freer and Chalk letters were inaccurate, reading “views were sought” when they should have instead read “views are being sought.”
9. This is a consultation exercise – no decisions on any of these matters have been made as yet, and we will of course listen very carefully and take into account all of the responses we receive and the suggestions that are made. The Government’s formal response will be published later this year.
This is inaccurate. This paragraph, taken from the Freer and Chalk letters, has not been amended to show that the consultation is closed. The wording here says “responses we receive” rather than “responses we received,” i.e. past tense.
Furthermore, I note that the Petitions Team Manager suggested changes to my proposed wording for the petition, claiming that it did not meet standards, despite the fact that there is nothing within the standards to suggest my wording did not meet them. I find this to be a form of government censorship, where imaginary standards were applied. In fact, my original wording was more accurate than what was suggested by the Petitions Manager in order for the petition to be accepted and published. I find that this is very much a double standard, considering that the MoJ’s response contains inaccuracies.
I implore you, as the Petitions Committee, to ensure that a more accurate response is given.
Yours sincerely.
Richard Holt
© Richard Holt, Holt’s Family History Research, 2024
Holt's Family History Research 