A testator left her daughter out of her will. She left a letter for the daughter in a sealed envelope along with letters to other people all in one large envelope. The daughter is intending to contest the will either by challenging the will or making a 1975 Act claim. We believe the letter could have crucial evidence relating to why the testator cut her daughter out and might include confirmation that she made substantial gifts to her in her lifetime. Is the executor entitled to open the letter before giving it to the daughter? Or is he obliged to hand it over to the daughter unopened?
Hi Remi,
Interesting.
Under the Postal Services Act 2000 - No (there are limited rules when you can).
The argument would be, its not been posted so the Act doesn’t apply.
On purely a professional level the letter ought to be given to the daughter unopened - we’d assume this was the mother’s wishes.
Richard
PFEP
If the will makes reference/identifies the letter to the daughter (and the other letters) it may be that such letter may be “incorporated” in the will thus requiring probate along with the will. In such a case, the executors would have entitlement to open and read the content of the letter.
If no such reference in the will exists and there is no ambiguity, confusion, contradiction etc in interpreting the will it seems unlikely that such letters could fall to be regarded as extrinsic evidence in helping to identify the testator’s intention and thus the executors would seem to have no grounds for opening them. The fact that the daughter may institute a claim under the 1975 Act or may seek to challenge the will would, again, not seem to justify the executors opening the letter even if its content provided the daughter grounds for claiming under the 1975 Act.
If the testator made it clear on handing over the letters that they should not be opened prior to death and, on death, be handed unopened directly over to the addressees this would prima facie suggest the testator did not want the executors to open them. I suspect that the testator’s intention in drafting the letters was some attempt to explain/justify to the various addressees why he/she had done what he/she had done and did not want it to be public knowledge and hence chose not to include their content in the will itself.
I doubt the Post Office Services Act 2000 is of relevance here.
Malcolm Finney
I recall being taught many years ago that PRs have a duty to open such envelopes in case the letter contains information about assets or liabilities of which the PRs otherwise have no knowledge. The Testator’s wishes are just that: morally, but not legally, binding.
Anthony Kalp
Berry & Lamberts LLP
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I would tend to agree. In any case, there is no incorporation by reference, no mention of the letter, no instructions not to open so it is very much the same, I would have thought, as any other document found with the deceased’s possessions. Thank you for your contributions.