| PROBATE — Practice — Inspection of will — Order for wills of two deceased members of royal family to be sealed up — Claimant applying to inspect wills — Application motivated by irrational and scandalous belief — Whether entitled to substantive hearing of application — Supreme Court Act 1981 (c 54), s 124 — Non-Contentious Probate Rules 1987 (SI 1987/2024), r 58
Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others [2008] EWCA Civ 56; [2008] WLR (D) 41
CA: Lord Phillips of Worth Matravers CJ, Thorpe and Dyson LJJ: 8 February 2008
The process by which a judge had ordered that the wills of two deceased members of the royal family should not be open to public inspection was not transparent, nor were the criteria applied plain, and, therefore, a person who had applied to inspect the wills was entitled to have a substantive hearing of his application, even though it was motivated by an irrational and scandalous belief.
The Court of Appeal so held in allowing an appeal by the claimant, Robert Andrew Brown, against the decision of Sir Mark Potter P in the Family Division on 5 July 2007 [2007] EWHC 1607 (Fam); [2007] WTLR 1129 to strike out his application for an order that the wills of HM Queen Elizabeth the Queen Mother and HRH Princess Margaret, Countess of Snowdon, which were sealed in 2002 by order of Dame Elizabeth Butler-Sloss P, be unsealed, on the ground that the claimant had no standing to apply to see the wills.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the claimant believed that he was the illegitimate son of the late Princess Margaret. That belief was without any foundation and was irrational. It was, however, held in good faith. It had led him to wish to inspect the wills of both Princess Margaret and the late Queen Mother, both of whom died in 2002. The wills were not, however, open to inspection because, in 2002, Dame Elizabeth Butler-Sloss P, on applications by the executors pursuant to s 124 of the Supreme Court Act 1981 and r 58 of the Non-Contentious Probate Rules 1987, made an order in respect of each will that it “should not be opened without the consent of the President of the Family Division for the time being”. The Attorney General had been joined as defendant to those applications. No public hearing took place. It was not clear whether any hearing took place at all. Nor was it clear whether or not the former President provided reasons for making the orders. If she did they had not been made public. Sir Mark Potter P had summarily dismissed the claimant’s claim that he had a special interest that entitled him to inspect the wills. The issue was whether he should nonetheless be permitted to challenge the 2002 orders on the ground that they should not have been made. Had those orders been made by a transparent process according to identified criteria in which the Attorney General had been joined to represent the public interest, there might have been force in the argument that no challenge based simply on the public’s right to inspect the wills should be permitted. The principle in Gouriet v Union of Post Office Workers [1978] AC 435 might have been applicable and an analogy with judicial review apt. The problem was, however, that the process under which the 2002 orders were made was not transparent, nor were the criteria applied plain. In those circumstances, the Gouriet principle did not apply. The 2002 orders placed no express restriction upon the circumstances in which application could be made to vary those orders. The issues raised by the claimant’s application were of public importance. It was not for their Lordships to attempt to resolve those issues. The question was simply whether Sir Mark Potter P was right to strike out the claim, thereby preventing the claimant from raising those issues. He was not. Until those issues had been resolved it was impossible to say that the claim was doomed to failure. It appeared that a practice had long existed under which royal wills would be sealed up. Special treatment for royal wills might be justified. However, these were questions that should properly be explored with knowledge of the material facts. It was unfortunate that these important issues should be raised by an application made by a person motivated by a belief that was both irrational and scandalous. However, the claimant was entitled to have a substantive hearing of his claim to inspect the wills. |
