Re_In_the_Estate_of_Jolley_Jolle

All England Law Reports/1964/Volume 1 /Re In the Estate of Jolley (deceased); Jolley v Jarvis and Sands - [1964] 1 All ER 596

[1964] 1 All ER 596

Re In the Estate of Jolley (deceased); Jolley v Jarvis and Sands

COURT OF APPEAL

WILLMER, DANCKWERTS AND DIPLOCK LJJ

20, 21 JANUARY 1964

Probate - Grant - Solemn form - Procedure for compelling after grant in common form - Caveat and citation by party disputing - Citor's duty to issue writ - Motion for grant of letters of administration inapplicable - Whether "contentious business" - Non-Contentious Probate Rules, 1954 (SI 1954 No 796), r 47 - Contentious Probate Business Rules, r 3.

Executors having obtained the grant of probate of a will in common form, the next-of-kin of the deceased caused a caveat and a citation to be issued against them and against other beneficiaries, reciting that the executors had obtained probate of the alleged will in com-mon form, that the deceased died intestate and that the probate ought to be called in, re-voked and declared null and void in law. The citation commanded the executors to leave the probate in the Principal Probate Registry and required them to cause an appearance to be entered in the registry and to propound "the said paper writing in solemn form of law" if they thought it in their interests to do so, or to show cause why letters of administration of the estate should not be granted to the next-of-kin. The executors and other beneficiaries entered an appearance to the summons, but the executors took no step towards pro-pounding the will in solemn form. Instead they issued a summons for directions on which the registrar made an order that the proceedings arising from the citation should be discon-tinued, that the caveat entered should cease to have effect and that the grant of probate should be handed out to the executors, unless the next-of-kin issued a writ in the matter within fifty-six days. The next-of-kin appealed against the order and served a notice of mo-tion for a grant of administration to himself under r 47 of the Non-Contentious Probate Rules, 1954. The appeal and motion were dismissed. On further appeal,

Held - (i) the order of the registrar must be confirmed since, as a matter of procedure, it was for the party desiring to obtain revocation of probate of a will, or to compel an executor who had proved a will in common form to propound it in solemn form, to issue a writ mak-ing the executor defendant and alleging the invalidity of the will and not for those desiring

to establish the will to propound it in solemn form merely because probate in common form was impeached (see p 600, letter i, p 559, letter a, and p 602, letters d and i, post).

(ii) the motion was properly dismissed, because it was in conflict with the order requiring the next-of-kin to issue a writ and r 47 applied only where the will had never been pro-pounded at all; moreover the present case was not one of non-contentious business, but of contentious business, with the consequence that the Non-Contentious Probate Rules, 1954, did not apply (see p 601, letters a and f, and p 602, letters c and f, post).

Appeal dismissed.

Notes

As to the procedure to obtain probate in solemn form, see 16 Halsbury's Laws (3rd Edn) 197, 198, para 344; and for cases on the subject, see 23 Digest (Repl) 111, 1118, 1119.

For the Non-Contentious Probate Rules, 1954 (SI 1954 No 796), r 47, see 7 Halsbury's Statutory Instruments 308, and for the Contentious Probate Business Rules, r 3, see ibid, 238.

Cases referred to in judgments

Barry v Butlin (1838), 2 Moo PCC 480, 12 ER 1089, 23 Digest (Repl) 131, 1357.[1964] 1 All ER 596 at 597

Merryweather v Turner (1844), 3 Curt 802, 163 ER 907, sub nom Merryweather v Turner, 3 LTOS 6, 23 Digest (Repl) 111, 1118.

Appeal

The appellant appealed against decisions of Payne J dismissing at their hearing together on 24 July 1963, two applications in the estate of Elizabeth Florence Jol-ley, widow, deceased, made by the appellant. The applications were: (i) by way of appeal by summons dated 24 June 1963, against an order of Mr Registrar Kinsley dated 18 June 1963, made on the application "to show cause why directions should not be given as to the commencement of proceedings in connexion with the" estate, dated 30 May 1963, and made by the respondents, claiming to be the executor and executrix of an alleged will of the deceased bearing the date 5 April 1961. Mr Registrar Kinsley ordered that, unless the appellant issued a writ in the matter within fifty-six days of the date of the order, the proceedings arising out of the caveat and citation issued by him should be discontinued and the grant of pro-bate in common form of the alleged will be handed out to the respondents. (ii) by way of original motion dated 17 July 1963, by the appellant, as the lawful son and

only person entitled to the estate of the deceased (on an intestacy), for an order pursuant to r 47 of the Non-Contentious Probate Rules, 1954, that letters of admin-istration of all the estate which by law devolved to and vested in the personal rep-resentative of the deceased be granted to the appellant or to such attorney as he might appoint until he should duly apply for and obtain letters of administration of the estate.

The grounds of appeal were that Payne J erred in point of law because: (a) the ap-pellant, as the lawful son and the only person entitled to the estate of the deceased on an intestacy, was of common right entitled to compel the executors of the al-leged will to prove the alleged will in solemn form, whether or not it had been proved in common form; (b) there was no power to make the penal order made by the registrar or for him to entertain the respondents' application at all, since it did not specify what specific directions were applied for, and (c) the appellant was enti-tled to apply by the motion for an order for a grant in common form to him or his at-torney of letters of administration to all the estate as if the alleged will were invalid, and an order ought to have been made accordingly, the appellant having duly per-formed all the requirements of r 47 of the Non-Contentious Probate Rules, 1954, and the times limited for appearance having in all cases expired and neither the re-spondents nor any of the other persons cited who had entered an appearance hav-ing proceeded to propounded the alleged will.

The cases noted belowa were cited in argument in addition to those referred to in the judgments.

a Core v Spencer (1796), 1 Add 374, Hoffman v Norris and White (1805), 2 Phillim 230, Newell v Weeks (1814), 2 Phillim 224, Bell v Armstrong (1822), 1 Add 365, Blake v Knight (1843), 3 Curt 547, In the Goods of Topping (1853), 2 Rob Eccl 620, Farlar v Farlar (1858), 1 Sw & Tr 124, In the Goods of Mor-ton, Morton v Thorpe (1863), 3 Sw & Tr 179, In the Goods of Riley [1896] P 9, In the Goods of Dennis [1899] P 191, In the Goods of Bootle, Heaton v Whalley (1901), 84 LT 570

J A Petrie and J C Tylor for the appellant.

H S Law for the respondents.

21 January 1964. The following judgments were delivered.

WILLMER LJ.

This appeal, which is from two decisions of Payne J raises a rather obscure problem of probate practice, and comes before the court in somewhat unusual circumstances. The matter arises in connexion with the testamentary dispositions of the deceased, Elizabeth Florence Jolley, who died on 10 December 1961. The appellant is the only son of the de-ceased, and claims to be the only person entitled as next-of-kin on an intestacy. At all ma-terial times, the appellant has been resident in India. He was there at the time of his mother's death, and, as I understand it, is still resident there. Unknown to him, the de-ceased purported to make a will on 5 April 1961, whereby she appointed the respondents as executors. The two respondents are the managing clerk to the [1964] 1 All ER 596 at 598

firm of solicitors who drew the will and the nurse who looked after the deceased, who was an elderly lady. Both of them take a benefit under the will, the latter to a considerable ex-tent. The appellant, on the other hand, gets nothing whatsoever out of the will.

On 26 January 1962, the respondents obtained a grant of probate of the will in common form. On 15 August 1962, the appellant caused a citation to be issued against the respon-dents (as well as a number of other beneficiaries under the will) which recited that the re-spondents had obtained probate in common form of the alleged will, that the deceased died intestate, and that the probate ought to be called in, revoked, and declared null and void in law. The citation went on to command the respondents to "bring into and leave in the Principal Probate Registry ... the aforesaid probate". It also required them to cause an appearance to be entered in the Principal Probate Registry and to "propound the said pa-per writing in solemn form of law" should they think it in their interests so to do, or to

"show cause why letters of administration of all the estate which by law de-volves to and vests in the personal representative of the said deceased should not be granted to"

the appellant; and it gave notice that, in default of their doing so, the court would proceed to grant letters of administration of the estate to the appellant notwithstanding their ab-sence.

The respondents and a number of other beneficiaries appeared to the citation, but it seems that the process of serving the large number of beneficiaries took some months, and the last of them only entered an appearance on 10 March 1963. Following this, the respon-dents, as executors, took no step towards propounding the will in solemn form. Equally, the appellant took no step to start an action for revocation. In these circumstances, on 30 May 1963, the respondents issued a summons before the registrar, asking for directions

as to the commencement of proceedings. On that summons the registrar made an order to the effect that, unless the appellant issued a writ in the matter within fifty-six days, the pro-ceedings arising from the citation should be discontinued, that the caveat entered should cease to have effect and that the grant of probate of 26 January 1962, should be handed out to the executors.

The appellant appealed against the decision of the registrar to the judge, Payne J. He also served notice of motion dated 17 July 1963, for an order, pursuant to r 47 of the Non-Con-tentious Probate Rules, for a grant of administration to himself. Rule 47 provides, by sub-r (2):

"If the time limited for appearance has expired and no person cited has entered an appearance, or if no person who has appeared proceeds with reasonable diligence to propound the will, the citor may apply on motion for an order for a grant as if the will were invalid."

The summons and the motion were both heard by Payne J on 24 July 1963, when he dis-missed the appeal from the registrar and also dismissed the appellant's motion. He did, however, grant leave to appeal from his decision.

The appellant's case is that the judge came to a wrong conclusion, and that it is for the re-spondents as executors to start an action to establish the validity of the will. He contends that, in the absence of any move on the part of the respondents to do so, he is entitled to proceed by way of motion under the Non-Contentious Probate Rules and to obtain a grant of administration himself. He asserts that he is prejudiced by the order made by the judge requiring him to institute proceedings as plaintiff because, first, he may be required to fur-nish security for costs, and, secondly, he will have to accept the burden of proving affirma-tively the invalidity of the will, instead of leaving it to the respondents to establish the will and relying by way of defence on the well-established doctrine of Barry v Butlin.[1964] 1 All ER 596 at 599

The reasons for the judge's decision are, I think, summarised in a single sentence of the short judgment which he delivered. He said:

"It seems to me that the plaintiff's advisers have consistently ignored, or over-looked, the fact that there has been in this case a probate of this will in com-mon form, and the procedure quite clearly set out in my view both in MOR-TIMER and in TRISTRAM AND COOTE in these circumstances is that, a caveat and citation having been ordered, the next stage is for the plaintiff who disputes the will to issue a writ of summons asking for a revocation of the pro-bate in common form and require proof of that will in solemn form."

We have been referred to several statements of the practice contained in the well-known textbook by Mr Mortimer, the Law And Practice of the Probate Division of the High Court of Justice. That textbook is of such standing that we can, I think, at least regard it as of high persuasive authority. The author says this (2nd Edn, at p 513):

"When probate in common form has issued to an executor, and a person whose interest is adversely affected thereby desires to compel proof of the will in solemn form, or on any ground to have such probate called in and revoked, the executor is cited to bring the probate into the principal registry in order that the citor may proceed in due course of law for the revocation of the same."

Later, on the same page, he goes on:

"The party cited, if an executor or administrator of the will, must, if he wishes to resist revocation, either issue a writ against the citor propounding the will, or enter an appearance to the writ which is usually issued by the party citing con-currently with the citation. An administrator on intestacy must similarly enter an appearance to the writ, issued with the citation, if he wishes to resist revoca-tion. If, after the grant has been brought in, the citor takes no step to have it set aside, the person cited may issue a summons for the discontinuance of pro-ceedings and for the redelivery out to him of the grant."

Then, in another passage (at p 550), under the heading "Actions for the revocation of grants", the author says this:

"The preliminary steps to be taken by a party who desires to obtain revocation of probate, or to compel an executor who has proved the will in common form, to propound it for proof in solemn form, are the entry by him of a caveat, fol-lowed by the extraction of a citation against the executor to bring the grant into the registry, and the issue of a writ making the executor defendant and alleging the invalidity of the will. The executor thereupon lodges the grant in the registry, enters an appearance to the writ, and an action commences."

It certainly seems to me that the directions given by the registrar in this case, and the order made by the judge, conform with the practice so stated in Mr Mortimer's book. The judge's decision, however, is attacked on the ground that it is said to violate a long established principle enshrined in a number of old cases to which we have been referred. It has been contended that, where a grant of probate in common form is impeached, it is for those de-siring to establish the will to propound it in solemn form, and accordingly that the appellant was entitled to do what he did, viz, issue this citation requiring them to do so. In support of that proposition we were referred to another passage in Mr Mortimer's book (on p 238), un-der the heading "The various forms of probate". In that passage the author distinguishes between probate in common form and probate in solemn form, and says this:

"The difference in effect between these two forms of probate is, that the execu-tor of a will proved in common form may at any time thereafter be

[1964] 1 All ER 596 at 600

called upon, by those whose interests are adversely affected, to prove the will in solemn form, and if he then shall fail to establish its validity the probate so granted is revoked."

It is to be observed that the note to this passage refers to several of the old cases relied on by the appellant here, and notably, I think, to Merryweather v Turner, which was relied on by the appellant and in which a number of the older authorities were reviewed. Counsel for the appellant also referred us to a number of passages in Tristram and Coote's Probate Practice, notably passages on pp 582, 584, 585 and 588--in parenthesis, I would add that he might also have referred us to a similar passage on p 577--as authority for the proposi-tion that, in circumstances such as those in the present case, the executors can be com-pelled to prove the will in solemn form notwithstanding the previous grant of probate in common form.

It seems to me that the argument for the appellant rests on a confusion between the right of a person in the position of this appellant to have the will proved in solemn form and the procedure to be adopted to bring this about. I do not think that his right to demand proof in solemn form can be doubted. But, having read and re-read the passages cited from Tris-tram and Coote, and having referred again to the old cases that have been cited to us, I can see nothing in them to contradict the statement contained in the passages I have read from Mr Mortimer's book as to the correct procedure to be adopted. Those older cases were not concerned with procedure, but with the question whether, in the particular circum-stances of the individual cases, the right to have a will proved in solemn form had been lost for one reason or another, such as delay or laches.

Furthermore, it seems to me that the procedure as it is stated by Mr Mortimer in his book is confirmed by the forms of citation prescribed by the rules. The rules provide forms for vari-ous types of citation, and they are collected in forms 69 to 82. The particular form appropri-ate for bringing in a grant of probate where an intestacy is alleged is form 77, and it is, I think, illuminating to read the words of the prescribed form. They are as follows:

"Whereas it is alleged in the said affidavit that the said deceased died intestate, and that the said probate ought to be called in, revoked, and declared null and void in law: Now this is to command you the said A.B. that within eight days af -ter service hereof on you, inclusive of the day of such service, you do bring into and leave in the Principal Probate Registry of our said court at Somerset House, Strand, London, the aforesaid probate in order that the said C.D. may proceed in due course of law for the revocation of the same."

That contemplates in the clearest possible way that it is for the citor to institute proceed-ings. It seems to me that the difficulty which has arisen in this case is a difficulty largely of the appellant's own making, because the form of citation which he caused to be issued, and to which I have already referred, attempts to combine with form 77 a good deal of form 69, which is the form of citation to accept or refuse probate, and which is appropriate to a case where there has been no probate in common form. The more one looks at the result the more it is apparent that the two forms simply do not mix. In the case contemplated by form 69, where there has been no grant of probate in common form, it is, of course, proper to require that the executors should show cause why administration should not be granted to the citor. But that is very different from the situation which has arisen in the present case.

In these circumstances, I am satisfied that the learned registrar made a perfectly proper or-der when he required the appellant to issue a writ within fifty-six days, and I am equally satisfied that the judge came to a right conclusion when he dismissed the appeal from the decision of the registrar. As it seems to me, the order made by the registrar did not in any way violate any right that the [1964] 1 All ER 596 at 601

appellant may have. It merely prescribed the procedure to be adopted, and prescribed it in accordance with what I regard as the recognised practice. That being so, I think it follows almost inevitably that the judge was equally right to dismiss the motion. So the second part of the appeal before us must also be dismissed. I think that it would be absurd to allow the appellant to continue proceedings for obtaining a grant on motion at a time when he is re-quired by the order of the court, if he wishes to proceed, to issue a writ. Moreover, it seems to me that the procedure by way of motion under r 47 of the Non-Contentious Probate Rules is quite inappropriate to the situation in the present case. As I read that rule, it ap-plies only in a case where the will has never been propounded at all.

In the view which I hold, the situation which has arisen in the present case is not one of non-contentious business at all. Here the parties are very much in dispute. I do not think it is necessary to specify at exactly what point the proceedings became contentious pro-ceedings, but that they did so become is, I think, beyond doubt. Contentious proceedings are defined by r 3 of the Contentious Probate Business Rules as

"All proceedings in the Court of Probate or in the registries thereof in respect of business not included in the Court of Probate Act, 1857, under the expression 'Common form business', except the warning of caveats, shall be deemed to be contentious business."

"Non-contentious or common form probate business" is defined by s 175 of the Supreme Court of Judicature (Consolidation) Act, 1925, repeating the definition contained in s 2 of the Court of Probate Act, 1857, as follows:

"'Non-contentious or common form probate business' means the business of obtaining probate and administration where there is no contention as to the right thereto, including the passing of probates and administrations through the High Court in contentious cases where the contest has been terminated, and all business of a non-contentious nature in matters of testacy and intestacy not be-ing proceedings in any action, and also the business of lodging caveats against the grant of probate or administration."

Having regard to that, it seems to me quite impossible to say that the situation we are deal-ing with here is one to which the Non-Contentious Probate Rules apply, and, therefore, proceedings under r 47(2) of the Non-Contentious Probate Rules, 1945, appear to me to be wholly inappropriate. In those circumstances, I am of the opinion that this appeal in re-spect of both decisions of the judge must be dismissed. I would only add this. I desire to make it clear that I am expressing no view at the present stage as to what the burden of proof may be which the appellant will have to accept in the event of his electing to institute an action for revocation. Nothing that I have said is to be regarded as prejudicing in any way his right to contend, if so advised, that the burden remains on those propounding the will, viz, the respondents, to justify the righteousness of the transaction.

DANCKWERTS LJ.

I agree. My lord has dealt so fully with the points which are involved that it is only neces-sary for me to add a few words. The contention on which counsel for the appellant based his arguments principally was that a person interested in the estate has a right to compel an executor who proved in common form to prove the will in solemn form. So be it. The question is, as so clearly stated by my lord, what is the proper method of achieving that re-sult? Counsel relied on r 47(2) of the Non-Contentious Probate Rules, 1954. Now that rule seems to me very inappropriate to an application of the kind contemplated in the present case. The citation has been issued, the executors have entered an appearance, and they have in fact propounded the will, though they did it, of course, in common form. Conse-quently, it seems to me that the terms of that rule do not permit an order to be made on motion. But there is a further, and, it seems to me, insuperable difficulty in the way of coun-sel for the [1964] 1 All ER 596 at 602

appellant, viz, the definition of what is non-contentious business, and the Non-Contentious Probate Rules, 1954, can apply only to non-contentious business. As was stated by my lord, there is a definition in s 175 of the Supreme Court of Judicature (Consolidation) Act, 1925, which defines non-contentious or common form probate business as "The business of obtaining probate and administration where there is no contention as to the right thereto". This obviously is a case in which there is contention as to the "right thereto". That, as pointed out by my lord, reproduces the provisions of s 2 of the Court of Probate

Act, 1857. The same point is underlined by r 3 of the rules relating to contentious business, which is in these terms:

"All proceedings in the Court of Probate or in the registries thereof in respect of business not included in the Court of Probate Act, 1857, under the expression 'Common form business', except the warning of caveats, shall be deemed to be contentious business."

Consequently, this case is a case of contentious business, and the Non-Contentious Pro-bate Rules, 1954, can have no application.

It seems to me quite clear that the application was not properly made, that the decision of the judge was perfectly correct and that this is a case in which there is contentious busi-ness. The proper procedure, as is mentioned in Mr Mortimer's book, the Law and Practice of the Probate Division of the High Court of Justice, requires a person who has cited the executors to start proceedings for revocation of the grant in common form, unless, for their own convenience it may be, the executors themselves decide to propound the will for proof in solemn form. That, I think, is really quite clear, and I am satisfied that the appeal must be dismissed.

DIPLOCK LJ.

I agree. Where probate has been already granted in common form and the next of kin re-quires the executors to prove the will in solemn form, in my view, the proceedings are not non-contentious business as defined in s 175 of the Supreme Court of Judicature (Consoli-dation) Act, 1925, but contentious business, and the rules and practice of the court relating to contentious business in probate matters apply. In my view, r 47 of the Non-Contentious Probate Rules, 1954, on which the appellant relies is of no application, for he is seeking the revocation of an existing grant of probate by the court. This can only be done, under both the new rules and those in force at the relevant time last year, by an action com-menced by writ of summons, although a citation to bring in the grant and a caveat must be issued before or simultaneously with the issue of the writ. In my view, the proper procedure at the relevant time was accurately summarised in the Annual Practice, 1963, pp 8 to 10, as follows:

"Revocation actions. These arise after a grant has been made in common form on such ground as the alleged invalidity of the will, or that the person who has obtained the grant is not entitled to it ... A citation to bring in the grant must is-sue before, or simultaneously with, the writ, and a caveat must be entered ... The citation ... must be brought into the registry in draft for settlement."

This is confirmed by Mortimer's book on the Law and Practice of the Probate Division of the High Court of Justice (2nd Edn) at pp 513, 514, which makes it clear that, although the executors have the right, if they so desire, and the citor has not already done so, them-selves to start proceedings to prove the will in common form, they are under no obligation to do so, and, if the citor takes no steps himself to issue a writ, the executors are entitled to apply to the court by summons for discontinuance of the proceedings and have re-delivery of the original grant to them.

I think that the judge was right, and would dismiss this appeal. In so doing, we are deciding merely that question of procedure, and I express no view whether, if the citor does issue a writ, it will be sufficient for him to deny knowledge and [1964] 1 All ER 596 at 603

approval and/or due execution of the will, and to put the executors to proof in solemn form, or whether the onus will lie on the citor to set up a positive case of invalidity. Although this question was adumbrated by counsel on behalf of the executors, it does not seem to me to be one which it is proper, or indeed relevant. to decide on an interlocutory appeal.

There is only one other matter to which I would desire to refer. I must confess that I started off the hearing of this appeal with a prejudice in favour of allowing it, because the papers provided by the appellant's solicitors were prepared in such an attractive and admirable form. For the reasons given by my lords, I have been obliged to overcome that prejudice, but I would like to pay my tribute to the appellant's solicitors for the model way in which this case has been prepared for this court.

Appeal dismissed. Leave to appeal to the House of Lords refused.

Solicitors: A L Bryden & Williams (for the appellant); Batchelor, Fry, Coulson & Burder (for the respondents).

F A Amies Esq Barrister.

[1964] 1 All ER 596 at 604

Re_In_the_Estate_of_Jolley_Jolle

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