Analysis
This was an application by the executor of HRH The Prince Philip, Duke of Edinburgh, for an order that his will be sealed up and that no copy of the will should be made for the record or kept on the court file, and for a direction to exclude the value of the estate from the grant of probate. The Attorney General was the sole defendant whose role it was to represent the public interest. The Attorney General strongly supported the application.
Applications to seal the wills of senior members of the Royal Family had been made for over a century. It appeared that they were always heard in private and were always granted, but no record exists of any judgment or statement of reasons.
The president of the Family Division therefore gave judgment to describe the legal and historical context from which the conventional practice had developed and in which the present application was made, to set out the factors he regarded as relevant and determinative with respect to the present application, and to address other matters including whether there should be a time limit on the period covered by an order providing for the sealing of a royal will. The judgment also gave reasons for the court’s decision to hear the application in private.
Held (granting the application):
Legal context
The default position is that a will which has formed the basis of a grant of probate must be open to public inspection (ss124 and 125, Senior Courts Act 1981), but it is not open to inspection if a judge finds such inspection to be ‘undesirable or inappropriate’ (r58, Non-Contentious Probate Rules 1987 (NCPR)).
While a sovereign’s will does not need to be proved by a grant of probate (In the Goods of His late Majesty King George III, deceased (1822), In the Goods of His late Majesty King George III (1862)), this does not extend to other members of the Royal Family whose estates are subject to ordinary probate rules.
The president of the Family Division has jurisdiction over non-contentious probate matters (s34, Supreme Court of Judicature Act 1873; s1, Administration of Justice Act 1970 referred to).
The Attorney General is the only person recognised by public law as being entitled to represent the public interest in a court of justice (Gouriet v Union of Post Office Workers [1978] applied).
Historical context
It was understood that the first member of the Royal Family whose will was sealed on the direction of the president of the (then) Probate, Admiralty and Divorce Division was His Serene Highness Prince Francis of Teek who died in 1910. An envelope purporting to contain a sealed will of Prince Francis was held in a safe by the president. The safe contained over 30 such envelopes.
During Court of Appeal proceedings in Brown v Executors of the Estates of HM Queen Elizabeth, the Queen Mother [2008], it had come to light that arrangements had been made between Buckingham Palace, the Queen’s solicitors, and the Attorney General’s secretariat regarding applications to seal wills, which were apparently approved by Dame Elizabeth Butler-Sloss P. This involved a highly confidential system of ‘checks and balances’ with the primary purpose of protecting the privacy of the sovereign.
Following the Court of Appeal’s decision in Brown, Mr Brown brought proceedings seeking a copy of the document describing the practice. Prior to the hearing before the Upper Tribunal, the Attorney General disclosed the note with an element of ‘gisting’ and two annexes. Mr Brown’s application to the Upper Tribunal for full disclosure of the note failed (Brown v Information Commissioner [2015]). The disclosed note recorded that the practice applied to ‘senior members’ of the Royal Family which included the consort of a sovereign or former sovereign, the child of a sovereign or former sovereign, and a member of the Royal Family who at the time of his/her death was first or second in line of succession to the throne or the child of such a person.
The present application
The test in r58, NCPR is satisfied if inspection of the document ‘would be undesirable or inappropriate’. This does not require ‘exceptional circumstances’. The conjunction ‘or’ also indicates that only one of the two conditions need be satisfied. ‘Undesirable’ and ‘inappropriate’ should be given their ordinary meaning. While an applicant must make out a ‘clear case’ for departing from the normal rule, the hurdle is not ‘an especially high one’.
In the context of a will of a deceased senior member of the Royal Family, what is in the public interest is likely to be determinative. In considering this, the Attorney General is uniquely entitled to represent the public interest (Gouriet referred to) and the Attorney General’s statement that the public interest strongly favours not permitting publication of the will and details of the estate should be ‘regarded as evidence of great weight’. In the context of a test measured on a scale of inappropriateness or undesirability, a finding, on the basis of the Attorney General’s statement, that a particular course is strongly in the public interest should be regarded as compelling. The court thought that on that basis alone, it was ‘effectively inevitable’ that the application must succeed.
The court also, however, conducted its own assessment of the relevant factors. There is an inherent public interest in protecting the sovereign’s dignity and that of the close members of her family to preserve their position and fulfil their constitutional role. There is therefore a public interest in protecting the private rights of the sovereign and close members of the Royal Family.
The court accepted a submission that the factors supporting the default rule favouring publication of wills were to ensure that effect was given to the wishes of the testator, to facilitate the notification and tracing of legatees, notification of creditors, alerting those who may come forward to prove a document in respect of which probate should be granted, and giving notice to those who might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The court accepted that none of these factors applied in the case of a senior member of the Royal Family. It also accepted that while there might be public curiosity as to a member of the Royal Family’s private arrangements, there was no true public interest in the public knowing this wholly private information, while media interest was commercial. Publicity would be very extensive and contrary to the aim of maintaining the dignity of the sovereign.
The court also thought it relevant that HRH The Prince Philip was likely to have executed his will on the understanding that the convention would be followed and that his will would not be open to public inspection.
The five questions left open by the Court of Appeal in Brown v Executors of the Estates of HM Queen Elizabeth, the Queen Mother [2008] were answered as follows:
- (i) It had not been possible to identify the principle behind the ordinary rule in ss124 and 125, Senior Courts Act 1981 that wills should ordinarily be exposed to public inspection. The factors identified by the claimant were important and likely to be relevant. The question of whether the rule was still justified or acceptable to the public was an open one.
- (ii) The hurdle in r58, Non-Contentious Probate Rules 1987 was not a high one. ‘Undesirable’ and ‘inappropriate’ should have their ordinary meaning. No attempt was made to offer an exhaustive list of relevant considerations, the focus in the judgment being confined to wills of senior members of the Royal Family.
- (iii) The question of what type of interest an applicant must show to be permitted to inspect a sealed will did not arise for consideration and so was not answered.
- (iv) The constitutional position of the sovereign made it appropriate for there to be a special practice for royal wills.
- (v) As much detail as possible, short of comprising the conventional privacy afforded to communications from the sovereign, should be made public as to the practice regarding royal wills through the publication of this judgment.
Private hearing
For essentially the same reasons as justified the substantive application, the court concluded that the hearing of the application should be in private. To have a series of announcements, hearings, and then a judgment would generate very significant publicity and conjecture over an extended period that would be contrary to the need to preserve the dignity of the sovereign and protect the privacy surrounding genuinely private matters. As a matter of public law only the Attorney General could speak to the public interest and there was therefore no role for those representing the media at a hearing putting forward any contrary view of the public interest. The fact that the Attorney General favoured a private hearing warranted significant weight.
Future applications
While it was hoped that this judgment would provide a template for the court to follow in similar applications, it would be for the president of the Family Division at the time to determine the course that should be followed.
Closed judgment
In future, the court should give a ‘closed judgment’ to record the court’s evaluation of any specific matters relating to the content of the will or other documents that may arise in a particular case. To avoid conjecture in the event that a closed judgment was given in some cases but not others, a closed judgment should be given on every occasion. However this would not apply to the present application to avoid any suggestion that there was specific private information relating to HRH The Prince Philip’s will or estate which justified avoiding publication. The court had not seen or been told anything of the contents of the will other than the date of execution and the identity of the approved executor.
Time limit
The need for privacy surrounding a royal will is at its height at the time that probate is granted. The importance of the factors justifying withholding publication will diminish over time while the historical or biographical interest in such wills will remain. It was questionable whether indefinite sealing was necessary or proportionate.
Instead, there should be an initial period of 90 years from the date of probate. At the end of that period, each will would be opened in private at the direction of the then-president of the Family Division to be inspected by the sovereign’s private solicitor, the Keeper of the Royal Archives, the Attorney General, and any of the deceased’s personal representatives who may be available. The physical process of un-sealing was to be conducted by a professional archivist from the royal archives or such other professional as the Keeper of the Royal Archives appoints. The court would then be invited to determine whether the will should be made public or re-sealed for a further set period. All previous orders for the sealing of royal wills would be varied to make provision for this.
Publication of a list of currently sealed royal wills
It was hard to make a principled distinction between providing information on the process for sealing royal wills, which was already in the public domain, and the publication of a list of those for whose wills a sealing order had been made. Providing a list would also avoid the media making fishing applications to the Probate Registry and would confirm the position which was ascertainable by other means.
The court was, however, concerned about the possibility of the media applying to open sealed wills which would give rise to significant work and costs and which would be likely to cause media interest and speculation which the court sought to avoid. The court therefore stated that it should be absolutely plain that any application to open a sealed will prior to the expiration of a 90-year period after grant of probate is likely to be dealt with by the president of the Family Division on a summary basis and is highly likely to fail in the absence of a specific, individual or private justification relating to the administration of the deceased’s estate.
Due to the possibility of one or both parties seeking permission to appeal, the annex containing the list of wills would not be published immediately.
JUDGMENT SIR ANDREW MCFARLANE: [1] The Executor of HRH The Prince Philip, Duke of Edinburgh (deceased) has applied for an order that His late Royal Highness’ will, executed on 5 June 2013, be sealed up and that no copy of the will should be made for the record or kept on the court file. The …Continue reading "Re Will of HRH The Prince Philip, Duke of Edinburgh [2021] WTLR 1545"