Wills: should we destroy them?

By Dr Peter Carpenter, Chair of the Neurodevelopmental Psychiatry Special Interest Group and Treasurer of the History of Psychiatry Special Interest Group.

The Government wants to destroy all the wills that it stores that are older than 25 years to reduce their need for storage space. They say this is to improve our access as it will digitise them first, but is this wise?

In olden days if I wanted to make a bequest I had to have my will proved in a church court, and which court I used depended on who had jurisdiction over the land or property involved. This makes searching 18th Century wills a nightmare as one must look at parish maps to see what diocese a person lived in and whether the parish was an ecclesiastical ‘peculiar’ ruled by a distant bishop, and then hunt to find if the wills of that Diocese survive and if so in what archive and if the index or wills have been digitised.

Fortunately, over time it became common to use the Prerogative Courts of Canterbury or York, who had jurisdiction over everyone in England, and the Canterbury records are digitised and fully indexed and accessible online. The York indexes are digitised but unfortunately you still have to apply to the Borthwick Archives to have a will copied for you.

A farmer telling his family, a doctor, a vicar and a lawyer his last will and testament. Coloured etching by H.W. Bunbury, 1809?, after G.M. Woodward. Wellcome Collection. Source: Wellcome Collection.

Since 1858 all wills in England and Wales have been dealt with by the Court of Chancery (and now the Chancery Division of the High Court). By law the originals of all wills have to be preserved forever and Chancery wills are kept by the Probate Registry, seemingly in Birmingham. By the 1837 Will Act, wills had to be made in writing, signed in the testator's presence (and if he physically could not sign then signed in his presence) and have two witnesses who also signed. The requirements for the mental capacity necessary to make a will have been set out more recently. Some of the requirements for making a will have varied – in wartime a soldier writing his wishes without witness signatures would have them accepted as valid directions if he died in battle. Even now, if no will is made the executors of an estate are expected to take into account any known desires of a person, such as those said on their death bed.

Once a person dies then their will has to be ‘proved’ by the court who grants the executors the power to act. Proving a will used to be relatively fast and cheap, even though you had to swear an oath in person to be an honest executor – my mother’s took 6 weeks to prove. Back then the idea was to encourage everyone to make a will. Now it takes 4 months for most simple wills to be approved (after the HMRC have given approval) and the cost has skyrocketed, even if almost everything is now done online with no need to appear anywhere in person. Remarkably the cost of obtaining a digital copy of any past will from the registry remains at £1.50, cheaper than obtaining a death certificate.

The cost of physically keeping the 110 million original wills is now reported to be £4.5M a year. The government is now looking to save money by systematically digitising and destroying all wills more than 25 years old (except those they deem of public interest). Since 2021 they have been digitising all new wills as they arrive.

An enormous quantity of genealogical and historical records are now digitised, making me able, for example, to research a friend's full ancestry back to 1800 over a weekend, while sat at home. But normally digitising these records has not resulted in the original documents being destroyed – as our archive shelves can testify.

The government wants to save money and sell off its storage space but does digitising past wills justify their physical destruction? Whilst we have a long history of the Civil Service destroying paper records – such as the almost entire record of First World War army hospitals – trusting to digital records seems equally dubious: mass digitisation has a poor record of producing completely legible records. Even if legible ones are made, will they remain readable for the next 100 years or more? Digital systems change very quickly. Can you read your electronic documents that are more than 20 years old? I can't. And do not forget all digital material has to be copied every few years – no magnetic tape or optic disc can guarantee keeping its data after more than 10 years (as many computer CDs demonstrate). So, we have to keep multiple digital copies and spend a fortune on the energy costs for these. What happens if someone decides to wipe them on a whim? A ransoming cyber attack? Have you looked at the records of the British Library recently? Whatever happened to those durable WhatAapp messages from the COVID enquiry? Paper is much more durable and takes longer to destroy.

Does it matter that we destroy the originals of these old and irrelevant records? If we destroy the older wills after digitising them, by the same argument should we be doing the same with the 170 million birth, marriage and death records more than 100 years old? All our administrative records? Our parish registers? What historic records should we keep once they have been digitised? Or is digitisation the panacea for keeping our history?

See the government plans, for more background and link to government's consultation on the proposal.

See a petition against their destruction. Consultation closes on 26 February.