Johnson v His Majesty's Attorney-General [2025] EWHC 1943
The English High Court decision of Johnson v His Majesty's Attorney-General [2025] EWHC 1943 is the first time that an English court has sealed a non-royal will, contrary to the ancient tradition that wills are available to the public.
Background
Johnson centred on the grant of probate for the will of a Mr Frank Cowley, formerly known as Freddie Scappaticci. Mr Cowley was allegedly a core member of an IRA internal discipline squadron called the "Nutting Squad" who located, interrogated, and murdered British spies. He was also, supposedly, a legendary double agent for the British army codenamed "Stakeknife". Although Mr Cowley was put into witness protection in 2003 after his purported identity was leaked to the press, he continued to receive threats until his death on 20 March 2023. After his passing, the solicitors named as his executors renounced their role and so the applicant, given a pseudonym by the court, offered to act as Mr Cowley's personal representative provided that the will was sealed from the public.
The decision
The High Court began by acknowledging that, although all wills are generally open to inspection by the public, the English courts retain a discretion to seal wills if they deem public inspection to be "undesirable or inappropriate".1 The Court also noted that this was the first ever application for the sealing of a non-royal will (there is a long running tradition that the royal wills are kept sealed from the public). The High Court then summarised the five factors which underpinned the public's right to inspect wills, being:2
- publicity should ensure that effect is given to the wishes of the testator;
 - the task of notifying and tracing legatees may be facilitated if the will is made public;
 - publication of a will might serve a general interest in notifying the deceased's creditors of the death;
 - in circumstances where a testator's true final will has been lost or suppressed, others may come forward to prove a document in respect of which probate should be granted, those individuals having been alerted by the publication of a purported true will; and
 - publication may give notice to those who might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
 
However, despite these factors, the bar for sealing a will in England is not exceptionally high:3
Whilst the provision creates an exception to the norm, the wording of the rule does not require there to be 'exceptional' circumstances… the hurdle established by r 58, whilst requiring an applicant to make out a clear case for departing from the normal rule, is not an especially high one.
On the facts, the Court was satisfied that the "undesirable or inappropriate" hurdle imposed by rule 58 was surpassed. Not only were none of the factors in favour of the grant of probate compelling, as Mr Cowley's death had already been widely publicised and there was nothing in the will which would be of any interest to the public.4 But also, publication was unnecessary to trace legatees and Mr Cowley's creditors who were all already aware of his death.5 On the other hand, the factors in favour of sealing the will "far outweighed" those in publication, with Chancellor Flaux saying:6
…in particular the need to protect the applicant and those named in the will from the real risk of serious physical harm or even death because they might be thought to be guilty by association with the Deceased.
Therefore, the Court concluded that the will's publication would be "both undesirable and inappropriate" and ordered it be sealed for the next 70 years, with it available to be inspected by those with the chancellor's consent.7
Analysis
As in the UK, every New Zealander has the right to access any grant of administration subject to the court's discretion, here codified in rule 5 of the Senior Courts (Access to Court Documents) Rules 2017. However the law in New Zealand imposes a stricter hurdle on those seeking to seal or redact wills, with Justice Palmer in Deng v Ye [2018] NZHC 928 describing the public's right to view wills as a "default right" of a "mandatory nature".8 His Honour went on to suggest that the contents of a will would have to be "highly sensitive or confidential" in order to justify sealing and that the power to seal wills should only be exercised with "good reason".9 In light of this, New Zealanders (and lawyers) should draft their wills with an awareness that the contents will become a matter of public record upon their death and consider their wording accordingly.