Great Grand Children & the Armchair Principle

Charlotte Brown (the plaintiff) is the executor of Betty Hunt’s (the deceased) estate. The deceased died on 22 June 2018 leaving a Will (“the Will”) dated 6 October 2014 naming her grandson Mathew Hunt (the defendant) as executor.

Before making the Will, the defendant had one child Nathaniel and told the deceased that he did not intend to have any more children.  However, following the deceased’s death the defendant re-partnered and has since fathered a daughter, Matilda, with his new partner.

Clause 9 of the Will stated:

I give the sum of one million dollars ($1,000,000) to such biological child or children of my said grandson Matthew Alec Hunt (being my great-grandchild or great-grandchildren) as survive me and if more than one in equal shares upon attaining the age of thirty (30) years.

The defendant is:

(a) the residuary beneficiary in the deceased’s Will;

(b) the deceased’s only biological grandchild;

(c) the plaintiff’s son;

(d)       Nathanial Hunt’s father. Nathanial Hunt was born on 12 November 2012 and is the eldest of the deceased’s great-grandchildren.

(e)        Matilda Charlotte Hunt’s father. Matilda Hunt was born on 15 November 2020, and is the deceased’s second and only other living great-grandchild; and

(f) the only person who can produce the deceased’s biological great-grandchildren.

The Proceedings

The defendant renounced his appointment as executor. Probate of the Will was granted to the plaintiff as substitute executor on 27 August 2018.

Following the distribution of bequests, transfer of real property and payment of expenses, the balance of the estate funds held in trust by the plaintiff’s solicitor as at 17 September 2021 was $1,086,736.15.

The plaintiff was granted leave to file an amended originating motion seeking the Court’s answers in relation to the construction of clause 9 of the Will.

In interpreting clause 9 the Court must take into account the words of the clause, the Will as a whole, and the surrounding circumstances of its execution. Importantly the rigid application of a uniform meaning throughout the Will may risk distorting the testator’s intention in respect of some relationships.

Construction of the Will

 The Court held that on its proper construction the class of beneficiary that cl 9 applies to includes all great-grandchildren of the deceased born before the first great-grandchild reaches the age of 30 years. That class of beneficiaries closes when the eldest great-grandchild reaches the age of 30 years. As a corollary the trust monies will be distributed to all great-grandchildren then alive at that time regardless of their age.

Amending the Trust

The plaintiff sought a variation to the trust established by by clause 9 of the Will to reduce

‘the age of the beneficiaries who are born at the time of this application’. 

It was submitted that the deceased was concerned that the beneficiaries of her estate had gained a level of maturity before any distribution was made. The court held that by reducing the age to 25 balanced the deceased’s testamentary intentions and the beneficiaries. Critically, it will reduce the extent to which the funds are depleted through trust management fees.

The Court was obliged to consider all persons who cannot consent to the variation which includes Nathanial and Matilda and any unborn children of the defendant who may be born prior the eldest great-grandchild turning 30.

In considering the impact on any unborn great-grandchildren, the court considered the low likelihood of their coming into existence together with uncertainty of the defendant’s present intention about fathering further children.

Under s 63A(1)(a) of the Trustee Act 1958 (Vic) the Court approved a variation to the trust established by clause 9 of the Will substituting the age of 25 years for the age of 30 years.

Appointing a Professional Trustee

Under the current terms of the Will, the plaintiff (now 70 years’ old) is required to manage the estate for the benefit of the deceased’s great-grandchildren until the oldest turns 30. The Court accepted in the interests of the beneficiaries, the security, investment and management of the trust monies, and the efficient, sound and faithful exercise of trustees powers, it is appropriate that the plaintiff be discharged from her role as trustee, and replaced by a professional trustee under s 48 of the Trustee Act 1958 (Vic).

Costs

The Court accepted that due to the inadequate framing of the questions in the summons and general preparation of the case by the plaintiff unnecessary costs have been incurred by the defendant. Therefore the defendant should have his costs paid from the estate on an indemnity basis. The court accepted that as the plaintiff’s application was necessary and appropriate that her costs be paid from the estate on a standard basis.

Lost Will, Administration & the Public Trustee

The Public Trustee of Queensland applied for an order to administer the estate of Kevin Middleton, who died in Brisbane on 22 December 2016, under s 29(1)(a) of the Public Trustee Act 1978 (Qld) (“PTA”) the Public Trustee administered Kevin’s estate under s 36(1) of the PTA.

If you die intestate in Queensland, your assets are distributed according to the rules of intestacy under the Succession Act 1981 (the Act). An intestate estate will be distributed initially to a spouse and issue (children, grandchildren). Where there is no spouse or issue, it goes to parents, brothers and sisters, nephews, and nieces, then grandparents, then uncles, aunts, and cousins – there is no provision under the Act to distribute an intestate estate to relatives more remote than first cousins.

Kevin never married and had no children. He was predeceased by his parents and de facto partner Shirley who had four children including the respondent, Paul. Additionally, there was some suggestion Paul has an acquired brain injury that may affect his cognitive functioning. The Court was asked to find whether Kevin left a will and whether Paul is entitled to a grant of administration of the Will.

In Queensland proof of the due execution of a will is subject to the operation of s 18 of the Succession Act 1981 (Qld); 18(2)provides

(2)  The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

On 5 June 2018, Paul’s brother Gary lodged a caveat against a grant of probate or administration in relation to Kevin’s estate. A probate caveat may be lodged to prevent an administrator or executor from being appointed. Gary lodged a notice of withdrawal of the caveat on 27 February 2020.

On 15 October 2018, Paul applied for letters of administration of the Kevin’s estate. However, as Paul is not a person entitled to take an interest in Kevin’s estate on intestacy, nor to a grant of administration on intestacy the application for letters of administration did not proceed.

When the application for a grant of administration on intestacy came before the Court on 24 September 2021 Paul – who was representing himself – submitted evidence that he had lost a copy of a previous Will Kevin had executed. The Court adjourned the proceedings to a later date directing that if there is or has been a Will Paul must prove its existence, execution, and contents by affidavit.

On 1 October 2021, Paul submitted affidavit evidence suggesting that there was or may have been a Will providing Paul would be sole beneficiary of the estate if Shirley predeceased Kevin; the original Will was kept securely until it was removed by Gary.  Paul’s copy of the original document was destroyed by a fire at his home – along with most of his belongings.

 That the Court accepted that:

  •  Kevin intended the document to be his will or part of his will under s 18(2);
  • Paul was to be sole beneficiary of Kevin’s estate if Shirley predeceased Kevin
  • Kevin did not destroy the Will with the intention to revoke it.

However felt it was appropriate that the Public Trustee continue to be the administrator of Kevin’s estate as Paul lacks the skills necessary to do so and the Public Trustee  has been administering Kevin’s estate since 2016

Bona Vacantia & Incorporated Associations

Paula Anne Bates had a close association the Genesian Theatre Company Inc (‘the Theatre’) for over 30 years. In late 2007 and early 2008, Paula instructed her solicitor to draft her final Will (“unexecuted Will”) including a provision that her executors hold the net balance of the Estate on trust for the sole benefit of the Theatre, to be utilised for the ongoing benefit of the Theatre and not be used for general running expenses.

Paula, a resident of an aged care facility, had discussed her wishes with her friends and was happy with the unexecuted Will asking her solicitor to arrange for a member of the aged-care home’s staff to put it in their safe. On 14 February 2008, Paula died. No executed Will has ever been found or identified.

In 2010, the named executors of the unexecuted Will, applied for a grant probate. The application was refused by the Registry. The applicants did not make an application for judicial proceedings and the proceeds of the Estate were entrusted to the NSW Trustee and Guardian (“the Trustee”). In October 2013, Letters of Administration were granted to the Trustee in accordance with Division 2A of the Wills, Probate and Administration Act 1898 (NSW) (“the Act”) as it was in effect at the time of Paula’s death.

In April 2016, the Trustee determined that there were no relatives of the Deceased who were entitled to receive the benefit of the Estate and notified the Office of the Crown Solicitor that the Estate would pass to the Crown as bona vacantia under s 61B(7) of the Act.

Following a number of attempts the Crown has refused an application to pay the balance of the Estate to the Theatre because it says that upon the proper construction of the Act, it is not permitted to pay monies held bona vacantia to a body corporate. The Crown advised the Theatre in August 2018, to make an application to the NSW Supreme Court to obtain a declaration that the Theatre is a “person” within s 61B(8) of the Act.

The Court held that s 61B(8) represents a “catch-all” provision permitting the Crown to pay out the property of an intestate to any person, including a not-for-profit or charitable organisation, that could establish that the intestate “… might reasonably have been expected to make provision” with no reason to construe these words as only referring to individuals. It follows that the reference to “person” in s 61B(8) of the Act should be taken to include a body corporate such as the Genesian Theatre.

Original and Copied Pages of a Will admitted to Probate

Mary Elizabeth Patchett (the deceased) executed a Will (the Will) on 2 October 2014 in the presence of two witnesses, appointing her son Neil Patchett,(the applicant) as her executor and trustee. The applicant prepared the Will at the deceased’s home and left it for her to sign in front of her witnesses.

After the Will was signed and witnessed, the deceased bound it with a metal paperclip in the top right-hand corner and gave it to the applicant who placed it in a plastic sleeve and then filed it in his office. 

Application for a grant of probate

On 2 July 2021, the applicant advertised a notice of intention to apply for a grant of probate in the Queensland Law Reporter. A copy of that notice was served by email on the Public Trustee on 24 June 2021.

On 4 August 2021, an application for probate was filed on behalf of the applicant.  Following examination of the Will, the deputy registrar identified: 

a) impression and rust-coloured markings on the Will.

b) that pages 4 and 6 of the Will are copies and not original pages

The applicant had not removed the paperclip or made a copy of the document. The Will had remained filed in the plastic sleeve in the applicants office until he removed it in order to commence administration of the estate. 

Affidavit of Plight

On 25 August 2021, the applicant filed an Affidavit of Plight, Condition, and Finding submitting the rectangular impression with rounded edges is of the dimension of a paper clip and the rust-coloured marks on the first page of the Will align with that impression. Additionally, a search was made in all likely and unlikely places to locate the original pages 4 and 6 of the Will without success.

The applicant concluded, and the Court accepted it was likely the deceased had made a photocopy of the executed and witnessed Will and, mistakenly included the copies of pages 4 and 6 in the Will and the original of those pages with the photocopy.  

Originating Motion

On 13 October 2021, the applicant sought an order that the document comprising four original pages and two copied pages of the Will be admitted to probate. 

Five matters must be established to succeed in admitting a copy of a Will to probate:

(a)          that there was a Will.

(b)          that the Will revoked all previous Wills.

(c)          that the applicant overcomes the presumption that a Will,   which cannot be produced to the Court, was destroyed by the testator to revoke it;

   (d)          that there is evidence of the terms of the Will; and

   (e)          that the Will was duly executed.

The Decison

The Court accepted that the original pages 1,2,3, and 5 together with the copies of page 4 and 6 produced by the applicant is evidence that there was a duly executed Will with clearly expressed terms. Similarly the original pages are evidence that the deceased revoked all previous Wills. As four original pages of the Will were handed by the deceased to the applicant the Court believed that it is doubtful a presumption of destruction arises.

Additionally, the Court accepted the deceased provided the original and copied pages to the applicant and retention of them in the same form is sufficient to overcome any presumption that the deceased destroyed part of the Will to revoke it.

The Court ordered that a combination of the original pages 1, 2, 3, and 5 and the copies of pages 4 and 6 of the Will be admitted to probate until the original Will or more authenticated evidence be brought into and left in the Registry.

Unwitnessed Document Admitted to Probate

John Flanagan died on 18 February 2020. In a draw of John’s desk, a sealed envelope was found addressed in his handwriting with the word ‘WILL’ .  The envelope contained a signed handwritten document dated ’16 Feb 2019’ entitled ‘Last Will and Testament’ (‘the document’).

The document dated ‘16th Feburary [sic] 2020’ on the final page and was not witnessed. The document appointed Edwena Mitchell (the plaintiff) as sole executor of the deceased’s estate.   

Informal Will

Notwithstanding the form and title of the document, and that it was enclosed in a sealed addressed envelope, it does not comply with s 7(1) of the Wills Act 1997 (Vic) (‘the Act’). The plaintiff sought a grant of probate of the document under s 9 of the Act  

Admission to probate of an Informal Will

Section 9 of the Act provides that a Court may admit to probate a will that has not been executed in conformity with s 7 of the Act if:

(a)        there is a document; that

(b)       records the testamentary intentions of the deceased; and

(c)        the deceased must have intended the document to be his or her will. 

Additionally, the Court must be satisfied that the testator demonstrated an intention without reservation, by some word or act that, the document would be legally operative to dispose of their property upon their death.

However, if the deceased lacked testamentary capacity, did not know, and approve of the document, or was unduly influenced, such that his or her will was overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will. 

The proceedings

The Court accepted that John is not known to have had a previous will. The document was in John’s handwriting, was not marked ‘draft’ and was sealed in an envelope addressed with the word ‘WILL’. No influence was exerted on the deceased in connection with the making of the document. 

Importantly the document is expressed in language intended to be testamentary and John did not suffer from any medical condition that affected his testamentary capacity.

John’s doctor submitted that at his last examination the deceased’s testamentary capacity was not affected and, would not have been impaired by – ischaemic heart disease- the medical condition which caused his death.

Additionally, following the plaintiff notification none of the beneficiaries who would take on an intestacy sought to be added as a defendant to the proceeding. Similarly, the beneficiaries if the document be effective provided their consent to the plaintiff’s application.

The Decision

The Court was satisfied that the deceased intended that the document be his will and ordered that it be admitted to probate. 

Intestacy – Western Australia to Increase Statutory Legacy

Intestacy occurs when the whole or part of a deceased’s estate is not disposed of by a will. Property in an intestate estate is usually distributed according to statute. Until recently ss 14,15 of the Administration Act 1903 (WA) provided that the deceased’s surviving spouse was entitled to a fixed net sum from the estate on intestacy.

In Western Australia, a spouse’s legacy could be as low as $50 000 when the intestate dies leaving issue (lineal descendants, including children, grandchildren, great-grandchildren and so on) and as high as $75 000 when the intestate dies leaving no issue. The Administration Amendment Bill 2021(WA) proposes to increase these amounts to $472 000 and $705 000.

The proposed increase aims to remove financial hardship for the surviving spouse and ensure that they can live in the manner to which they have become accustomed.

Parental Statutory Legacy

Additionally, the parental statutory legacy that applies where the deceased has living parents, siblings, or siblings’ issue but no surviving spouse increases from $6000 to $56 500. Last reviewed over forty years a the Western Australian Parliament considered it appropriate that the deceased parents participate in the distribution of their child’s intestate estate.

The Attorney General believed that the bill was required to address the amounts of the statutory legacies payable on intestacy – last adjusted in 1982 and now grossly inadequate – and to provide a formula to calculate future increases when required.

Jack Kerouac

Jack Kerouac died in October 1969 with an estate valued at $91.00. At odds with his third wife, Stella Sampas, Jack’s will left everything to his mother, Gabrielle, leaving no mention of any of his three wives, or daughter Jan – who Jack had met twice before he died. Stella claimed a “widow’s share,” under Florida law granting her the right to one-third of Jack’s property.

The day before he died, in a letter Jack wrote to his nephew Paul Blake, Jr. stating:

“my entire estate, real, personal, and mixed all goes to you…You can do anything you want with my property if I kick the bucket because we’re of the same blood.”

Stella Sampas

Stella nursed Gabrielle until her death in October 1973. Gabrielle’s will left the entire estate to Stella who failed to notify Jan or Paul. When probating Gabrielle’s will, Stella stated that there were no other known heirs.

Stella died in 1990, leaving the Kerouac literary estate to her siblings; with her youngest brother John acting as executor.

Jan Kerouac

However in May 1994 Jan Kerouac filed a lawsuit submitting that Gabrielle was too unwell to sign her name as it appears on her will; submitting Gabrielles signature had been forged. Additionally, the witness to the signature claimed he had witnessed no such thing. Following Jan’s death from kidney disease in 1996 aged 44, Paul Blake Jr. continued the action.

The Sampas family

The Sampas family submission is that Stella became Gabrielle’s caretaker, and when Gabrielle died in 1973, a combination of her estate and Florida state law left Kerouac’s literary estate to Stella. When Stella in 1990, the Kerouac properties were left to her siblings who appointed John Sampas – who controlled Jack’s name, likeness and titles – as their trustee.

In 1992 the estate allowed City Lights to publish “Pomes All Sizes” the first release by Jack in 15 years. Multiple volumes of Kerouac poetry, prose, letters and journals, authorised for publication by the estate have followed.

Importantly the estate has sold both privately and to institutions. In 2001 the New York Public Library Berg Collection acquired Kerouac’s letters, journals and original manuscripts.

Stella left the original scroll of “On the Road” to her younger brother Tony Sampas. One of the most valuable manuscripts in American letters it is 120 feet long and was typed on a single sheet of teletype paper. The scroll was on deposit at the New York Public Library for 10 years until its sale for $2.4 million at Christie’s in 2001.

Forged Will

In 2009 following medical evidence and the testimony of a handwriting expert, Floridian courts declared Gabriel Kerouac’s will a forgery. However there is no evidence that any member of the Sampas family committed the act of fraud.

Additionally, it would be impossible to reclaim the sold items and return them to Paul– Kerouac’s only living relative. Similarly it has been reported that 98% of what survives of Jack’s writing are held and available for study in the Berg Collection – including copies of documents sold to generate operation capital for the estate.

The Sampas family affirmed a 2004 court order that they had inherited from Stella’s will, not Gabrielle’s will. On The Road alone sells upward of 100,000 copies a year with royalties from all of Jack’s books going to the Sampas family.

Following John Sampas’s death his nephew Jim Sampas, producer of the 2013 movie “Big Sur,” was named literary executor has helped administer the estate for about a decade.

“I had nothing to offer anybody except my own confusion”

Regardless of any rights and wrongs, John Sampas’ stewardship of the estate has firmly cemented Jack Kerouac as a literary icon, enabling his role in twentieth-century literature to be studied and given the respect it deserves as one of the founders of the beat generation of writers

 

 

Forfeiture, Intestacy, & Estate Gifts

Marcia Ann Dolan (the deceased) left a Will dated 26 June 1998. Clause 6 of the Will, dealt with the residue of Marcia’s estate and provided for it to be divided: as to 40% to Marcia’s biological son, Paul Stow; and 10% each to her six stepchildren.

Background

Marcia was murdered by one of her stepchildren therefore his bequest under her will was forfeited the consequence of which is that the 10% share of the residue passes to the person or persons who would be entitled to it if there had been a lapse of his interest under the Will (Helton v Allen [1940] HCA 20). Probate of the Will was granted on 18 February 2003 to the the executor Leonard Saville who subsequently paid funds into Court (a sum of around $20,000 plus interest).

The proceedings relate to an application filed for Maureen Winifred Carroll, by her tutor, Christopher William Carroll on 17 August 2021.

Gift of residue

The two alternatives are that the forfeited bequest would either pass as part of a general gift of residue that applied on the failure of one of the other gifts under cl 6 or it would pass on intestacy.

Importantly, the Succession Act 2006 (NSW) does not apply as Marcia’s last Will was made before 1 March 2008; s 61B(6) of the Wills, Probate and Administration Act 1898 applies under the transitional provisions of the Succession Act 2006

Submissions

The applicant submitted and the court accepted that provisions of cl 6 are structured as two separate gifts in respect of the rest and residue of the estate: the first, as to a 40% share; the second, as to a 10% share each for the six named stepchildren.

Examples of class gifts are ‘to my grandchildren’, ‘to my grandchildren A, B and C and such of my grandchildren hereafter born’, ‘to A, B, C and D if living’. Gifts to several persons by name, number or reference are not usually true class gifts.

The structure of cl 6 reveals that the share left to the stepchildren is not a “class gift” as such, but rather comprises separate independent gifts to the members of that group of beneficiaries.

Paul Stow was put up for adoption by Marcia (although the court accepted it was a forced adoption) in 1967. The legal consequence of adoption is that the child is of his adoptive parents, and not the child of the deceased, and therefore would not take on an intestacy.

The Decision

The Court held that as there is no general residuary clause, the 10% share in the residue of the estate is forfeited and that share is subject to a partial intestacy with the effect that the forfeited share passes on intestacy to Marcia’s only sibling, Barry Thomas Carroll. 

The Court directed that the funds paid into Court by the executor be paid out to Christopher William Carroll as tutor for Maureen Winifred Carroll the sole beneficiary of the Will of the late Barry Thomas Carroll, or in the alternative to Maureen Winifred Carroll’s financial manager.

Christian Porter’s Blind Trust

An individual who enters politics and wants to avoid any appearance of conflict between their role in government policy and their personal interests may place their assets into a “Blind Trust”. The trust operates according to a trust deed –which outlines the purposes of the trust, including how the assets shall be distributed when the blind trust expires.

Christian Porter

In March this year former Commonwealth Attorney-General Christian Porter commenced defamation proceedings against the ABC and reporter Louise Milligan. In May he decided to discontinue this action. Recently Mr Porter updated his register of members’ interests declaring that a “blind trust known as the Legal Services Trust” had made a “part contribution” to cover the costs of his lawyers and filing the lawsuit against the public broadcaster adding he had no access to information about its conduct or funding.

A Blind trust

The settlor and the beneficiary (who can be the same person) of the blind trust have no role in the day-to-day management of the trust. Once assets are transferred to a blind trust, the trustee can freely buy and sell assets as expressed in the trust deed. The beneficiaries are not informed of the assets held, bought or sold, or the performance of the trust.

Similarly, the trust deed limits the settlor or beneficiary from contacting the trustee regarding the holdings, principal, or returns, importantly they cannot direct the trustee about the management of the assets. The settlor and beneficiary are “Blind” to the day-to-day actions of the trustee.

Discretionary Trust

The “Legal Services Trust” resembles a discretionary trust whose beneficiaries do not have a fixed entitlement to the trust funds. It is usual for the trust deed of a discretionary trust to define potential beneficiaries very broadly, (this can include companies, trustees of other trusts, and children yet to be born) with the trustee having complete discretion to determine who receives a benefit from the trust and how much each of them can receive. Importantly, unless the objects of the trust are described with sufficient clarity the trust could be void for uncertainty.

Beneficiary or Object?

Until the trustee exercises their discretion in favour of a potential beneficiary, they are an “object” of the trust. Therefore, technically Mr. Porter is an object and not a beneficiary of the Legal Services Trust until the trustee has exercised its discretion to distribute the income of capital to him.

Additionally, an object of a discretionary trust does not have a proprietary interest in the property of the trust – they have a “mere expectancy” – being the right to compel the due administration of the trust estate and the right to be considered by the trustee.

Register of Members Interests

It has been reported that Mr. Porter was provided with an assurance from the trustees that the assets of the Legal Services Trust were not provided by lobbyists or prohibited foreign entities.

Assuming Mr. Porter knows the identity of the trustee who revealed this information it may assist in knowing who donated the money as the settlor and trustee maybe the same. However, the trust deed may have been drafted imposing a limitation on the trustee not to disclose the identity of the settlor to an object of the trust.

Prince Phillip’s Will to remain unpublished for at least 90 years

In the United Kingdom s124 of the Senior Courts Act 1981, (‘SCA 1981’) provides that when a grant of probate is made, any Will or other documents that are relevant to that grant must be open to inspection.

Rule 58 of the Non-Contentious Probate Rules 1987 (‘NCPR’) provides that:

“An original will, or document referred to in section 124 of the [Senior Courts] Act shall not be open to inspection if, in the opinion of a District Judge or Registrar, such inspection would be undesirable or inappropriate.”

While the Sovereign’s will does not need to be proved by a grant of probate, the estates of other members of the Royal Family shall be administered following the ordinary probate rules, this includes the power of a court to direct that the will or other document filed with the grant of probate not be open to inspection.

The Application

The executor of HRH Prince Philip, Duke of Edinburgh (“the Deceased”) applied for an order that the deceased’s will, executed on 5 June 2013, be sealed in an envelope and that no copy of the will should be made for the record or kept on the court file. The purpose of the application is to protect the dignity of the person of the Sovereign, by protecting the privacy of those family members closest to Her. Additionally, the application seeks to exclude the value of the estate from the grant of probate.

Recent case law concerning sealed Royal Wills

The first family member whose will was sealed up by the court was the younger brother of Queen Mary, Prince Francis of Teck, who died in 1910 leaving valuable emeralds prized by the Queen to his mistress.

In 2007, Robert Brown, claiming to be the illegitimate child of Princess Margaret, applied to unseal the wills of the Queen Mother and Princess Margaret however this claim was struck out as “vexatious and an abuse of process”.

On appeal, the Court of Appeal held that although Mr Brown was motivated by a “belief that is both irrational and scandalous” accepted that he should have been able to raise several general issues of public importance relating to the original process by which the Wills had been sealed.

Attorney Generals Practice note

Following the discontinuation of the appeal by Mr Brown, he made a request under the Freedom of Information Act 2000 for the document describing the practice of the sealing of Royal wills. Before the hearing, the Attorney General had decided to disclose the confidential note which provided that the Family Division applied to ‘senior members of the Royal Family’ including

• 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/or Her death, is first or second in line of succession to the throne or the child of such a person.

The Decision

Once any potential appeal against his judgement has been able to run its course Sir Andrew as the President of the Family Division will publish a complete list of the names of the Royal Family members whose Wills are sealed in envelopes and contained in a safe to which he is the custodian. Additionally, the wills of other, less senior, members of the Royal Family may have been sealed for specific reasons, or due to a wider definition of “Royal Family” being applied in this context in earlier times.

The parties argued that the wills should be sealed for 125 years, but Sir Andrew believed that 90 years was “proportionate and sufficient” after which each royal Will would be opened by a professional archivist to ensure the documents and seals are properly preserved prior to examination by the Sovereign’s private solicitor, the keeper of the Royal Archives, the attorney general and any personal representative of the deceased who may still be available. A decision as to whether the Will is made public will be made at that stage, however, Sir Andrew believes that some royal wills may never be published, even in part.