Should Original Wills Still be Stored in Paper Form? MoJ Consults Legal Profession

The Ministry of Justice (MoJ) has launched a consultation on the storage and retention of original will documents by HM Courts and Tribunals Service (HMCTS).

The consultation is intended as a means to challenge the current system of will storage and look at ways of preserving original wills in a more economic and efficient manner, whilst still enabling the documents to be accessed and examined in the event of probate disputes.

There is currently no limit to the length of time that courts can hold original, paper wills for. Many are held far beyond the period when a contentious probate challenge might be brought – HMCTS has original documents in storage dating back to 1858.

According to the MoJ, the current system involves significant storage and preservation costs that increase each year and are difficult to justify when digital preservation offers an equally efficient, much more economic and environmentally beneficial alternative.

It is proposing to introduce a system for preserving will documents in digital form, rather than keeping all of the original paper documents submitted in probate applications, as is current procedure. Views are also being sought on the question of whether the right to inspect stored wills should be changed. The consultation will additionally consider if the original paper will documents of famous and historic figures should be preserved in perpetuity.

Since 2021 HMCTS has created digital copies of any new wills that are deposited with it. The MoJ is proposing to digitise other stored wills on a rolling programme. This, it says, would enable wills to be permanently kept and available for inspection, but as digital copies, avoiding the heavy costs that would otherwise be incurred.

The consultation, which is primarily aimed at the legal profession in England and Wales, is open until 23 February 2024. A paper summarising the responses will be published in summer 2024.