I last taught Wills, Estates, and Trusts in Spring 2025 to a large class with a fair number of students who were taking the course because the topic was likely to be tested on the bar exam.1 Consequently, I was concerned that students would not be as engaged when we covered trusts which, in my experience, students find more challenging to grasp than intestacy or wills. The media’s Herculean efforts to provide coverage of the Rupert Murdoch family trust litigation despite the parties’ attempts to seal the entire court proceeding, however, brought trusts to life. Many students—especially those who were fans of Succession, the HBO series inspired by the Murdoch family’s power struggles—were fascinated and simultaneously disturbed by the use of trusts to preserve wealth and power with minimal regulation. This glimpse into a real-world Succession drama would not have been possible had the litigation remained cloaked in secrecy as Murdoch (the settlor) intended, and as recently enacted trust privacy statutes seem to authorize. In Secrecy in Trust Litigation, Weisbord, Horton, and Cahn expose the latest trend in the race to attract trust business—statutes that seal trust matters automatically—and conclude that these laws perpetuate wealth inequality, undermine judicial decisionmaking, thwart the development of trust law, and are unlikely to survive constitutional scrutiny.
The Article’s contributions are many but I will focus here on three. First, the Article provides a thorough account of how trust matters are sealed: (1) through a common law petition for a protective order in a specific case, which the Article refers to as “ad hoc sealing”, or (2) through recently enacted statutes that authorize sealing of the entire case as a matter of course or upon request, which the Article refers to as “super-sealing” statutes. Although ad hoc sealing requests are not novel, the Article analyses the conflicting standards applied by appellate courts when determining whether a trust matter should be sealed, specifically whether the parties’ privacy interests outweigh the public’s interest and right of access to court proceedings. It also examines a dataset of 1,431 trust matters filed in San Francisco Superior Court from 2014 to 2020 and finds that ad hoc sealing requests are quite rare (only 8 requests in 1,431 trust matters) and that the majority are denied.
Second, the Article demonstrates that states with super-sealing statutes condone a striking deviation from the norm of public access. While super-sealing statutes are in effect in only a handful of states and their application has only been challenged in one case—the Murdoch litigation in which the Nevada Supreme Court dodged the constitutional question—the Article argues that these statutes are unlikely to survive constitutional scrutiny. It shows that super-sealing statutes may violate the First Amendment, which the Supreme Court has interpreted to prohibit restriction of access to court records that have typically been accessible to the public unless the restriction is narrowly tailored. It further explains how these statutes may violate their respective state constitutions which guarantee open courts.
While these contributions are sufficient to make the Article a must read for anyone interested in open access to courts, the Article’s discussion of the policy issues raised by secrecy in trust litigation are particularly illuminating. It illustrates how super-sealing statutes exacerbate inequality between those with and without substantial wealth. It observes that our inheritance “system is already deeply unfair: it invites the wealthy to bypass probate and forces everyone else to leave a public record of their assets, debts, and (if they make a will) dispositive choices” and argues that “[i]t would be doubly unjust to allow the well-resourced to litigate behind closed doors while continuing to insist that the less fortunate sacrifice their privacy even in non-litigated matters.” (P. 42.) As the Article observes “[s]ealed trust litigation allows the wealthy to ‘purchase’ privacy.” (P. 42.)
In addition, the Article demonstrates how secrecy is likely to negatively impact judicial decisionmaking and the development of trust law—issues that should be of deep concern to lawyers, educators, and the public at large. It explains that secrecy deprives us of precedent. If matters are sealed, the public will lack access to court decisions that may impact future disputes and lawyers may be left unaware of the law in a particular state. Relatedly, it contends that super-sealing statutes may disincentivize judges from taking the time, care, and effort to draft detailed decisions that would aid readers others than the parties in the matter.
Although the Article opposes super-sealing statutes and concludes that there should be a presumption against sealing, it recognizes that restrictions on public access may be warranted in limited cases. It proposes principles that would allow lawmakers to balance parties’ legitimate privacy interests against the public’s right of access to court filings and proceedings. For example, it argues that courts should be required to make clear, specific, and publicly-recorded findings of potential harm in order to seal a matter and give limited weight to litigants’ wishes to seal.
Weisbord, Horton, and Cahn recognize that transparency, on its own, will not make our wealth transfer system more equitable. However, Secrecy in Trust Litigation exposes the many harms of sealing and furthers the effort to create a system in which the applicable inheritance rules do not distinguish between the haves and have-nots.
Editor’s Note: Professor Weisbord is a section editor for Jotwell’s Trusts & Estates section but took no part in the selectediting process for this jot.
- Wills, estates, and trusts was often tested on the bar exam before the adoption of the Next Gen Bar in 2026.
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