In September 2021, the High Court gave a public judgment explaining why the court had decided that the will of the late Duke of Edinburgh should be sealed for a period of 90 years -
developed without any detailed parliamentary debate. The judgment traces the history of the practice. Attention is also drawn to the Court of Appeal's judgment, in 2007, which noted how arrangements had been made between Buckingham Palace, the Queen's solicitors and the Attorney General's secretariat. Those arrangements were approved by the High Court. The 2007 judgment is at
Wills - some general points:
There are many sound reasons why individuals ought to "execute" (i.e. make) a will. The reasons need not be discussed here.
The individual making the will is referred to as the "testator."
A properly drafted will will appoint the executor (or executors) of the will who will become responsible for ensuring that the testator's wishes, as expressed in the will, are carried out.
A grant of probate is required before the will may be administered by the executor(s).
After a grant of probate, the will is available for public inspection. This requirement is found in the Senior Courts Act 1981 section 124 and, on payment of a fee, it is possible to obtain a copy of a will (section 125).
Non-Contentious Probate Rules 1987 ('NCPR') Rule 58 provides that a will shall not be open to inspection if, in the opinion of a District Judge or Registrar, such inspection would be "undesirable or inappropriate." These Rules are made by the President of the Family Division with the concurrence of the Lord Chancellor.
Royal wills:
The will of the Sovereign (i.e. HM The Queen) does not require probate - In the Goods of His late Majesty King George III (1862) 3 SW & TR 199, 164 ER 1250. This is the only will exempt from that requirement.
As a matter of law it is possible for the court to make a sealed will available for inspection but applications are not, in practice, very likely to succeed. One successful application concerned the will of the late Duke of Windsor. The applicant was the librarian of the Queen's Archive held at Windsor. [See Re His Royal Highness the Duke of Windsor (deceased) [2017] EWHC 2887 (Fam)].
In modern times, given the huge media interest in prominent members of the Royal Family, it is hardly surprising that there is also considerable interest in the contents of their wills but anyone wishing to know is likely to find the will has been "sealed" for a considerable time into the future. We, the general public, are therefore prevented from knowing how their, often considerable, assets have been distributed.
The Duke of Edinburgh:
In September 2021, the President of the Family Division of the High Court (Sir Andrew McFarlane) ruled that the will of the late Duke of Edinburgh should be sealed for 90 years. A link to the judgment has already been provided.
In paragraphs 1 to 3 the judge said -
- 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 application also seeks a direction to exclude the value of the estate from the grant of probate.
- Her Majesty's Attorney General for England and Wales is the sole defendant to the summons. The Attorney General's role is to represent the public interest.
- At a hearing in private on 28 July 2021, having heard submissions from Mr Jonathan Crow QC for the Executor and from the Attorney General, leading Mr Christopher Buckley, I determined, firstly, that the hearing should proceed in private. Having heard further submissions, and following time for consideration, I announced my decision which was that the Executor's applications should be granted.
The entire matter was therefore heard and decided in private but a public judgment was handed down on 16 September 2021.
As a
post on the Inforrm's Blog notes -
"While the judgment is a welcome dose of transparency, the extremely one-sided way the hearing was conducted – with the application to hear the case in private itself being heard in private, and with no one to represent the interests of anyone who might legitimately oppose such an application (such as a historian or royal biographer) – is a matter of some concern."
An appeal:
Over 20 and 21 July 2022, the Court of Appeal (Civil Division) - Sir Geoffrey Vos MR, Dame Victoria Sharp (President of the Queen's Bench Division) and Lady Justice King - heard an appeal by Guardian News and Media.
Guardian News argued that the High Court was wrong in law to hold a private hearing without first offering the media an opportunity to make representations about whether they could be present. Essentially, Guardian News argues that there was a serious breach of the
open justice principle.
The newspaper seeks a declaration from the Court of Appeal that the High Court was wrong in law to proceed in the way it did. The appeal court is also being asked to quash the High Court decision and to direct a rehearing of the case.
A further problem, identified in the appeal, is that the judge opted to go beyond consideration of just the sealing of the Duke of Edinburgh's will. As the judge stated - para 5 of his judgment -
"The purpose of this open and public judgment is to describe the legal and historical context from which the conventional practice that I have described developed and within which the present application is made. The judgment will move on to set out the factors that I have regarded as relevant and determinative with respect to the application before turning, finally, to deal with a number of short matters including whether there should be a time limit upon the period to be covered by an order providing for the sealing of a Royal will."
The Guardian argued that there ought to have been an opportunity for others to make representations before the judge ruled on the "number of short matters" including the time limit.
The Court of Appeal will hand down judgment later. If a rehearing is ordered then it is likely that the newspaper - and perhaps others - would apply to be interveners in such a fresh hearing. Such a hearing, if it comes about, will not necessarily result in any different outcome.
The role played in all of this by the Attorney General is also of constitutional interest.
Attorney General:
The High Court judgment notes - at paragraph 12 - that - "It is well settled that the Attorney General is the only person who is 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] AC 435)."
Precisely what the "public interest" actually is can, of course, be debated. There could be a legitimate "public interest" in keeping some of the Royal wills sealed so as to avoid fuelling needless controversy.
There is also a major interest in open justice and exceptions to it ought to be subjected to anxious scrutiny and need to be based on very sound reasons. Ideally, the exceptions ought, in a democracy, to be detailed by Parliament.
One previous Attorney General asserted in a speech that, at least in some areas, he was better placed than the courts, or other Ministers, to decide what the public interest is -
Law and Lawyers: The Public Interest ~ who should decide? (obiterj.blogspot.com). Unfortunately, all too often the so-called "public interest" appears to be a method of keeping from the public matters that may be embarrassing to the government or to others in high places.
Historically, the role of the Attorney was something of a mystery. Little comprehensive material was available until the 1964 publication of "The Law Officers of the Crown" by Professor John Llewellyn J. Edwards. The role of the Attorney General has come under greater scrutiny in recent times but has largely escaped any fundamental reform.
Links / Reading:
A search on Bailii for cases where Open Justice is referred to either in the House of Lords or Supreme Court produced 33 cases -
BAILII - Search results
*** The Judgment ***
22 July 2022
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