Sunday, 19 November 2017

The "sealed" will of HRH The Duke of Windsor

Royal Wills have been in the legal news this week - In the matter of HRH The Duke of Windsor (deceased) [2017] EWHC 2887 (Fam) - or via Bailii.   First of all, some background.  

Sealing of wills:

The Senior Courts Act 1981 section 124 requires wills under the control of the High Court in the Principal Registry or any district probate registry to be deposited and preserved and, subject to the control of the High Court and to probate rules, to be open to inspection.  The Non-contentious Probate Rules 1987 Rule 58 (NCPR) provides that an original will shall not be open to inspection if, in the opinion of a registrar, such inspection would be undesirable or otherwise inappropriate.  The words in blue are not amplified in the Rules so the question is raised as to when it may be undesirable or inappropriate to permit inspection. Where inspection is considered to be "undesirable or inappropriate" the will is "sealed" and will only be available for inspection if the High Court permits.

As we know from many recent events,
there is insatiable curiosity about the private lives, friendships and affections of members of the royal family and their circle.  This may justify special treatment for their wills and such wills appear to be invariably sealed.  This, so it appears, is to protect the privacy of those beneficiaries named under (or omitted from) the provisions of the wills.

Following the deaths in 2002 of Princess Margaret and The Queen Mother, litigation was brought by a Mr Robert Andrew Brown who claimed to be an illegitimate son of the late Princess Margaret.  He also sought to inspect the will of the late Queen Mother.  The case is Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and Executors of the Estate of HRH The Princess Margaret [2008] EWCA Civ 56.   It appears from this case that the general practice is that Royal Wills are sealed.  However, the Court of Appeal ruled that Mr Brown was entitled to have a substantive hearing of his application but, in the event, it seems that he did not pursue this.

Para. 28 of this judgment is interesting - "Before and after the death of Princess Margaret there were discussions between the Palace, Farrers, the Attorney General's Secretariat, and the Attorney General and the court which reviewed what Mr Hinks described as the practice of sealing royal wills. The Senior District Judge was involved who sought the views of the former President. Ultimately 'a quite lengthy document' was agreed that was reviewed and approved by the former President. The process that this contained involved a system of 'checks and balances' that was highly confidential. The primary object of the process was to protect the privacy of the Sovereign ...."

Freedom of Information:

Mr Brown did make a request under the Freedom of Information Act 2000 for the document referred to in para. 28.  This reached the Upper Tribunal - Administrative Appeals Chamber and judgment was given by Charles J in  2015 -  HERE.   This judgment is of interest in that the Annex to the judgment contains most of the information referred to in para. 28 of the Court of Appeal judgment about the practice of sealing royal wills.

The Duke of Windsor:

His Royal Highness Prince Edward Albert Christian George Andrew Patrick David Duke of Windsor K.G. K.T. K.P. G.C.B. G.C.S.I. G.C.M.G. G.C.I.E. G.C.V.O. G.B.E. I.S.O. M.C. P.C. was born on 23rd June 1894, the eldest son of HM King George V (1865-1936) and Queen Mary (1867-1953).  On the death of George V on 20th January 1936, he became King Edward VIII but his reign ended with abdication on 11th December 1936 - His Majesty's Declaration of Abdication Act 1936.  On 8th March 1937 he was created Duke of Windsor, a title which he held until his death in Paris on 28th May 1972.

The Duke of Windsor's wikipedia entry is HERE.  He was clearly a man who lived an "interesting" life which I leave to historians and others to assess.  Much information about him and his activities is available - e.g. Youtube 1  Youtube 2 etc.

His will was sealed in accordance with the practice in relation to royal wills explained by the then President, Sir Mark Potter P, in Brown v HM Queen Elizabeth the Queen Mother and others [2007] EWHC 1607 (Fam), [2007] WTLR 1129, and, on appeal, by Lord Phillips of Worth Matravers CJ, giving the judgment of the Court of Appeal, in Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others [2008] EWCA Civ 56, [2008] 1 WLR 2327.

Queen's Archives - Application for a copy of the will:

The Assistant Keeper of the Queen's Archives (Oliver Urquhart Irvine) applied for a full copy of the will for research purposes and stated that - "Although the Royal Archives holds many originals and copies of probate records for past members of the Royal Family, this is a gap in our holdings and therefore in our knowledge."

On 15th November, Sir James Munby P allowed the application - HERE.  He noted (para 8) that all that was sought was a direction authorising the disclosure to Mr Irvine, in his capacity as The Librarian and Assistant Keeper of the Queen's Archives, of copies of the will and codicil.

Mr Irvine identified two reasons in justification of the application.  "First, the desire of the Queen's Archives to fill a gap in its holdings. Second, the practical need for the Queen's Archives to identify those who currently hold the copyright in literary works created by the Duke of Windsor.  Each of these two reasons is compelling.   Either alone would, in my judgment, quite plainly justify the disclosure which is sought.  It would be absurd to deny to the Royal Archives copies of the will and codicil of one who was born a Royal Prince, died a Royal Duke and was in his time His Majesty the King" - para. 9.

Accordingly, the envelope could be opened, one copy made of the contents of the envelope and that copy delivered to Mr Irvine in his capacity as The Librarian and Assistant Keeper of the Queen's Archives.  The envelope is then to be re-sealed.

An interesting footnote to an interesting life story.  Whether the (invariable?) practice of sealing royal wills is justified is a matter on which views will differ.  As with any will, the matter is ultimately in the control of the court.  Edward is buried at Frogmore, Windsor.

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