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Upper Tribunal (Administrative Appeals Chamber)
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Cite as:  UKUT 393 (AAC)
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IN THE UPPER TRIBUNAL Case No.: GIA/3190/2011
ADMINISTRATIVE APPEALS CHAMBER
Before: Mr Justice Charles
For the Appellant: In person
For the Respondent: Robin Hopkins, instructed by the Solicitor to the Information Commissioner
For the Additional Party: Sam Grodzinski QC and Joanne Clement , instructed by the Government Legal Department
1. The FTT erred in law in its identification of the extent of the Appellant’s request and thus the disputed information.
2. Save for one paragraph the disputed information covered by the Appellant’s request has been voluntarily disclosed since the FTT made its Decision.
3. The Appellant’s request for disclosure of that paragraph is refused.
1. This is an appeal against the decision of the First-tier Tribunal (Information Rights) dated 26 August 2011 (the FTT Decision). The FTT dismissed the Appellant’s appeal against the decision of the Respondent (the Information Commissioner) in his decision notice dated 6 December 2010 (the IC Decision).
2. The Appellant brought proceedings in the Family Division and on appeal in the Court of Appeal, for a direction to unseal the wills of the late Queen Mother and of Princess Margaret (see Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and Others  EWHC 1607 and  1 WLR 2327 CA). The reports of those decisions of the President of the Family Division and the Court of Appeal set out the relevant background to those proceedings. The President struck out the proceedings but on appeal the Court of Appeal directed that the Appellant was entitled to have a substantive hearing.
3. The Appellant has not pursued those proceedings.
4. After the hearing in the Court of Appeal and before it gave judgment (on 8 February 2008) the Appellant made a request dated 3 January 2008 under the Freedom of Information Act 2000 (FOIA) in the following terms:
It was stated at a hearing before the Court of Appeal that the Attorney General had been a party to the creation and agreement of such a Practice Direction.
5. Paragraph 28 of the Court of Appeal’s judgment states:
28. 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. Thus when the two applications came before the former President she had an understanding of the background that she would not otherwise have had.
6. On 16 June 2008, the Attorney General concluded that he was not required by FOIA to disclose the requested information as it was exempt under section 37(1)(a) and section 41 of FOIA. By the IC Decision the Respondent held that the Attorney General had properly relied on the exemption in section 37(1)(a) and the Appellant appealed to the FTT.
7. In written evidence to the FTT a civil servant then serving at the Cabinet Office, having referred to paragraphs 27 and 28 of the judgment of the Court of Appeal stated:
It is the case that both before and after the death of Princess Margaret discussions took place between the Attorney General’s Office, Farrer & Co (acting on behalf of the Queen), the Royal Household and the President of the Family Division relating to the established practice of sealing Royal Wills. The discussions that took place concerned the procedure to be applied where applications were made to seal a will made by a member of the Royal Family – i.e. an order by the court that a copy of the will should not be available for public inspection (at the Family Division Principal Registry), following the grant of probate, unless the President of the Family Division consented to such inspection. Applications to seal are made to protect the privacy of Her Majesty the Queen and the Royal Family. The result of the discussions that occurred was recorded in a Confidential Note on Royal Wills dated March 2002, and two further documents, Annexes A and B. The two annexes recorded (respectively) the principles relevant to an application to seal a will made by a member of the Royal Family, and the practice to be followed when an application to seal was made.
I accept that Annexes A and B represent the information sought by Mr Brown by his request as they comprise the information described to the Court of Appeal at the hearing on 17 December 2007 (i.e. the information referred to by the Court at paragraph 28 of its subsequent judgement). The document is not in fact a practice direction within the meaning of the Civil Procedure Rules. I accept that in the course of the proceedings before the Court of Appeal the phrase "practice direction" was used to describe the document. Nevertheless I also note from the transcript of the hearing before the Court of Appeal on 17 December 2007 (pages 15 – 35 AA1), the court also appeared satisfied that the document referred to as a "Practice Direction" was not in fact a practice direction in any formal sense.
8. The FTT concluded that:
a. section 37(1)(a) was clearly engaged,
b. the Information Commissioner was correct to conclude that the public interest in maintaining the exemption outweighed the public interest in disclosure, and
c. the exemption under section 41 also applied on the facts of this case.
9. Permission to appeal has been granted on three grounds:
(1) Did the FTT err in law in concluding that the request for information was limited to Annex A and Annex B and did not also include the Confidential Note.
(2) Did the FTT err in law in the application of the public interest balancing test under section 2(2) of FOIA.
(3) Did the FTT fail to give adequate reasons for not requiring partial disclosure of the disputed information.
10. After a hearing in October 2014 at which the Appellant was represented I ordered that:
(i) the disputed information (Annex A, Annex B and the Confidential Note) could be put before the Upper Tribunal on a closed basis,
(ii) the Appellant's application that a special advocate be appointed be refused,
(iii) the Attorney General was to notify the Royal Household of its right to apply to be joined as an interested party to this appeal,
(iv) the Information Commissioner and the Attorney General were to serve on the other parties a document setting out:
(a) the grounds on which they rely in support of their case that the public interest balance weighs in favour of maintaining the s. 37 exemption in respect of the disputed information, by reference to as much of a description of the disputed information as can and should be given in open session;
(b) their position on the issue of whether they intend to develop their case in respect of those grounds in closed submissions and, if they did so intend to develop their case, the nature and extent of those closed submissions;
(c) the approach the Upper Tribunal should adopt in the event that the Appellant's appeal was successful.
11. Those directions were complied with and the Attorney General and the Information Commissioner continued to seek to uphold the FTT Decision and the IC Decision. The Appellant through counsel (and as I had directed) responded. The Royal Household indicated that it did not wish to take part in the appeal.
12. In early April 2015, as a result of a further review the Attorney General decided to voluntarily disclose:
a. all of Annex A,
b. all of Annex B,
c. all of the Confidential Note other than paragraph 10, and
d. a gisted version of paragraph 10.
The documents as disclosed are set out in the Annex hereto.
13. In the letter informing the Appellant of this decision it was asserted that paragraph 10 had been “gisted” i.e. redrafted to convey the essential part of the information while withholding that in respect of which the Attorney General intended to rely on the section 37(1) exemption. It also informed the Appellant that “the core information contained in Annexes A and B was put into the public domain in 2013 by way of the consultation on draft rules in relation to non contentious probate business”. (This publication was not raised as a factor in the arguments before me).
14. This voluntary disclosure had the result that the remaining issues in the appeal were:
(1) is the Confidential Note within the scope of the Appellant’s request, and if it is
(2) should the unredacted version of paragraph 10 be disclosed.
15. It was common ground that if I found that the Confidential Note was within the scope of the request I should decide the second issue which turns on whether the public interest is in favour or against disclosure.
16. At the outset of the hearing I asked the Appellant why he was not prepared to accept “yes” for an answer and he explained that in his view the public interest issues warranted him continuing with the appeal to obtain the unredacted version of paragraph 10.
The most relevant sections of FOIA
17. At the relevant time section 37 of FOIA was a qualified exemption and section 37(1)(a) provided that:
(a) communications with Her Majesty, with other members of the Royal Family or with the Royal Household
18. Section 41 relates to information provided in confidence and although it is an absolute exemption it was in my view correctly not argued that it added anything because it has a public interest balance within it that equates to that applied by section 2(2)(b) of FOIA. So, in this case, section 41 adds nothing to section 37.
19. Section 37 was amended by the Constitutional Reform and Governance Act 2010 and section 37(1)(a) to (ab) is now an absolute exemption.
Is the Confidential Note within the scope of the Appellant’s request?
20. I have already referred to the written evidence of a civil servant then serving at the Cabinet Office.
21. In paragraphs 35 and 36 of the FTT Decision the FTT refers to that evidence and the Attorney General argued before me that it accepted that evidence in paragraph 39 of the FTT Decision and therefore agreed that the requested information comprised the two Annexes and not the Confidential Note. At paragraph 39 the FTT stated:
---- It is entirely satisfied that the general description of the information sought according to that information (sic) by [the civil servant] is entirely correct and that no purpose would be further served by elaborating upon the general descriptions, not only afforded by [the civil servant] himself but also in the terms of the Decision Notice [ i.e. the IC Decision ] and the earlier judgments of Sir Mark Potter and the Court of Appeal.
22. There is no express conclusion by the FTT on the extent and meaning of the request. In my view, paragraph 39 of the FTT Decision is equivocal as it could be referring to the description of the documents in the evidence and not to (a) the acceptance that the request covers Annexes A and B, and so (b) the inference therefrom that it excludes the Confidential Note. It may be that this was expanded upon in the closed session that took place before the FTT. It is unclear to me why a closed session was thought necessary or appropriate, I was not referred to anything that happened in it and in my view correctly no-one asked me to hear closed argument.
23. However, I accept that if the FTT had concluded that the Confidential Note was covered it would have said so and for that reason I accept that, as submitted by the Attorney General, it found that the Confidential Note was not covered by the request.
24. In my view, in doing so it erred in law.
25. Ultimately the decision can be classified as an issue of fact but it has to be based on the interpretation of the request and its application to the documents which is an issue of law. Also reasons for the conclusion should be given.
26. No such reasons are given in the evidence adopted by the FTT or in the FTT Decision. Of itself that would be an error of law. But I do not have to found my decision on that error or consider whether an appropriately generous reading of the FTT Decision would avoid it because I have concluded that properly interpreted the request covers the Confidential Note and so the FTT’s conclusion that it did not is flawed in law for the reasons set out in the next three paragraphs.
27. It is clear that the request is referring to the description given by Mr Hinks to the Court of Appeal and so to what had for convenience been referred to as a practice direction in the course of the proceedings before the President and the Court of Appeal.
28. Mr Hinks was describing a document and not Annexes to a document Those Annexes cannot be described as a “quite lengthy document”, and when they are read with the Confidential Note they do not set out the checks and balances he was referring to.
29. Further, in my view a reading of the Confidential note and the Annexes shows that they were prepared and treated as a composite whole with the intention that they would be read and applied together rather than as a note of earlier discussions and separate documents that would be what would be used (without the Confidential Note) when an application to seal a will was made. Indeed the “principles” refer back to the history in the Confidential Note.
The public interest arguments
30. Both sides relied on their arguments directed to the whole of the disputed information. In response to my directions the Attorney General identified the public interests against and for disclosure as:
(i) Protecting the privacy and dignity of the Royal Family so as to preserve their position and ability to fulfil their constitutional role as a unifying symbol of the nation.
(ii) Protecting members of the Royal Family from and undue intrusion into private matters.
(iii) The Queen, whilst Head of State, is a private individual in her own right. There is a public interest in protecting another individual's privacy.
(iv) The information in question concerns a private matter, as it deals with how wills of members of the Queen’s family should be treated.
(i) The public interest in open and transparent justice, particularly when it concerns how courts carry out their duties.
(ii) The public interest in transparency in how the Queen interacts with other areas of government, (in this case, the Attorney General) and the courts.
(iii) The information requested is not a Practice Direction.
31. The Information Commissioner so identified the public interest arguments as being:
(i) The public interest in respecting the privacy of the views (his emphasis) of the Sovereign on matters which are personal to her, namely her will and those of members of her family.
(ii) The public interest in maintaining a process (his emphasis) intended to safeguard the privacy of the Sovereign.
(i) The public interest in the transparency of practices and procedures followed by the courts.
(ii) The public interest in the transparency of communications between the Sovereign and officials of the state, namely a member of the government (the Attorney General) and the courts (in particular, the President of the Family Division).
32. As directed, in response the Appellant commented on the public interests advanced by the other parties against disclosure and identified those for disclosure by reference to what he and his advisers then knew of the contents of the dispute information as follows:
(i) The disputed information comprises the information revealing the principles and procedure which are to be applied by the court as and when it is determining an application for the sealing of a particular Royal will.
(ii) The Sovereign would never herself be an applicant in this context as the will of the Sovereign is always automatically sealed.
(iii) The disputed information has come about as a result of secret exchanges between the Palace, the Attorney General and the court.
(iv) It is common ground that the sealing of any will, including a Royal will, engages the public interest, hence the involvement of the Attorney General, who is required to act on behalf of the public in such matters.
33. In his written and oral submissions Mr Brown added a significant amount of material in particular in respect of the rule of law, the role of the Attorney General, open justice and the relationship between the Sovereign and the courts (as to which he went back to Coke, Prohibitions del Roi and the Ship Money case and Act). He therefore expanded on grounds (i), (iii) and (iv) listed in the last paragraph.
34. My conclusion that the FTT was of the view that the Confidential Note was not covered by the Appellant’s request means that it addressed the public interests by reference to the two Annexes and not the Confidential Note. It follows that I am not concerned with whether the FTT erred in law in its approach to the public interest balancing exercise it carried out and the one I have to carry out is much more limited.
35. However, I record that my preliminary view (with or without taking account of the point that the core information in Annexes A and B had been put into the public domain in 2013) was that the Attorney General correctly identified the public interest when making the voluntary disclosure that he did.
36. In my view there is are very powerful public interests:
(i) against the creation of undisclosed principles and procedures to be applied by the court to an application to seal any will, and this is strengthened when participants in and the decision maker on that application (the court through initially or generally the President of the Family Division) and the normal guardian of the pubic interest (the Attorney General) have been involved in its creation on a confidential and undisclosed basis, and so
(ii) in favour of the publication of the principles and procedure to be applied on any such application (particularly if initially or generally the application will be made in private).
37. The disclosure decision of the Attorney General promotes those strong public interests in that it disclosed the principles and procedures to be applied and most of the Confidential Note.
38. As I have indicated in my view the principles and procedures to be applied were included in one composite document. But I acknowledge that parts of the Confidential Note could have been excluded from such a document and different issues arise in respect of the impact of the public interest considerations relating to the disclosure of (a) discussions leading up to the agreement and drafting of the principles and procedures to be applied, and (b) the principles and procedures so agreed and drafted.
39. The pubic interest argument I am concerned with relates to the unredacted version of paragraph 10 of the Confidential Note.
40. As I confirmed to the Appellant the rewriting of paragraph 10 accurately conveys its essential meaning and only a few words have been omitted. He pointed out that the redacted version does not say whether the Attorney General will support or oppose the application but that information would be part of the essential meaning of the original paragraph and the point is covered by paragraphs 4 and 5 of Annex B.
41. The words omitted plainly engage the exemption in section 37(1)(a) of FOIA (as it was in force at the time the request was dealt with).
42. It is also the case that the information omitted engages what would now be an absolute exemption and so something that on reconsideration Parliament has concluded should not be disclosed under FOIA although it could still be disclosed in proceedings relating to the unsealing of a Royal will (and so in the proceedings commenced but at present not being pursued by the Appellant). But I add that it may well not be so disclosed on the basis that what has already been disclosed makes it irrelevant.
43. FOIA provides a right to information and not to documents and so to the record of information, although in some cases the relevant record or document may provide information (see The Independent Parliamentary Standards Authority v The Information Commissioner and Ben Leapman  EWCA Civ 388 confirming earlier decisions of the Information Commissioner and tribunals). Here the record does not provide information save in the sense that the words omitted provide information.
44. The point that the essential meaning of paragraph 10 has been conveyed is confirmed when the re-written paragraph 10 is compared with paragraph 1 of Annex A. From that starting point the balance of competing public interests comes down to whether words (and so information):
(i) that add nothing to the information in the document (read with its two Annexes) that engages the strong public interests in favour of disclosure described in paragraphs 32 and 33, and
(ii) only provides information which clearly engages the section 37 qualified exemption,
should be disclosed.
45. I acknowledge that there is a general public interest in favour of disclosure that underlies FOIA and the point that if the public interests are evenly balanced the information should be disclosed (see Department of Health v Information Commissioner and Lewis  UKUT 159 (AAC) at paragraph 38). But, as that case also shows the balancing exercise needs to be carried out on a contents basis.
46. In my view, in this case for the following reasons that balancing exercise falls clearly in favour of upholding the exemption and so excluding the omitted words from the information provided to the Appellant:
(1) The information that engages the powerful public interests advanced by the Appellant and in particular those identified by me in paragraph 36 above in favour of disclosure has been provided.
(2) Following that disclosure the content of what is being withheld does not engage those powerful public interests even though it relates to communication between (a) a person referred to in section 37 of FOIA, and (b) the court (through a judge or judges) and the government (through the Attorney General).
(3) So, following that disclosure the public interest balance in respect of the content of what is being withheld engages a balance between:
(i) effectively a general public interest in transparency of communications leading to a decisions, and
(ii) the powerful public interest foundation for section 37 of FOIA, and thus in non disclosure identified in paragraphs 30(i) and (ii) and 31(i) hereof.
47. That conclusion on the balance of the public interest is reinforced by the point that Parliament has confirmed the strength of the public interest foundation to section 37 of FOIA by making parts of the amended section 37 an absolute exemption.
48. I did not hear closed submissions and in my view there is no need for me to give a closed decision. I acknowledge that a reading of the omitted words informs the views expressed in paragraph 46 (and in particular paragraph 46(2)) above but closed reasons would not assist anyone who can read the words to follow my reasoning and, by definition, closed reasons would not assist the Appellant or anyone else who cannot read them.
Signed on the original
Mr Justice Charles
Dated 14 July 2015
NOTE ON ROYAL WILLS
1) Applications for orders for the sealing up of Royal Wills occur from time to time, the applications being served on the Treasury Solicitor, as solicitor for the Attorney General, who is the sole respondent, representing the public interest. The practice is confidential and receives only passing reference in the text-books.
2) The will of a deceased British Sovereign cannot be proved (in the Goods of King George III, deceased (1822) 1 Addams’s Ecclesiastical Report 255; in the Goods of King George III (1862) 3 Sw. & Tr. 199)2. Otherwise there are no special provisions relating to probate of wills of members of the Royal Family, including Queens Consort.
3) Normally a copy of the will of a deceased person which has been admitted to probate is annexed to the grant of probate and a copy is also available for inspection by members of the public at the Principal Registry of the Family Division. It has however been a frequent practice for the personal representatives of deceased members of the Royal Family to make application to the Family Division of the High Court for an order that-
· the will be sealed up without making any photostat or other copy thereof for record; and
· it be not opened without the consent of the President for the time being of the Family Division; and
· a grant of probate of the said will be made to the said executors without annexing a copy of the will.
On occasion there has been an additional application that no figures shall appear on the Grant of Probate.
4) These applications are made under section 124 of the Supreme Court Act 19813 which provides-
“All original wills and other documents which are under the control of the High Court in the Principal Registry or in any district probate registry shall be deposited and preserved in such places as the Lord Chancellor may direct; and any wills or other documents so deposited shall, subject to the control of the High Court and to probate rules4, be open to inspection5.”
PRACTICE PRIOR TO 1945
5) A number of applications of this nature were made and orders made by the Court for sealing up the wills of members of the Royal Family. The Treasury Solicitor’s records show that in 1923 the view was taken by the Senior Registrar of the Principal Probate Registry that there was no privilege attaching to the publication of wills of members of the Royal Family but that special circumstances had to be shown which rendered such an order desirable. Until 1945 it seems to have been the practice to refer applicants to the necessity to show special grounds, although there is no record that any orders were refused because of the absence of special grounds.
PRACTICE AFTER 1945
6) In 1945, however, an application was made to seal up the will of Princess Henry of Battenburg, and an order was made. In that case no special grounds for an order were urged, the executors merely suggesting that they considered publicity undesirable. The Attorney General stated that whilst he did not consider the public interest would be prejudiced by an order, he felt that this would be a departure from the practice previously prevailing which required special reasons in each case. The difficulty which the then Attorney General felt was that, if the continuance of the then practice resulted in some Royal Family wills being sealed and some not sealed, the public might infer a desire for concealment in those sealed and that would be contrary to the public interest. The Attorney General expressed the view that it was really desirable that all wills of members of the Royal Family (at any rate those closely related to the Sovereign or a former Sovereign) should not be made public. The President indicated that he shared the Attorney General’s view and made the order.
7) In 1959, an application was made in the case of Princess Arthur of Connaught. In that case, the President observed that no special reason was shown, but that it was desirable to make an order. The Attorney General did not oppose the order but suggested that it might be necessary in the future to decide how far the term “Royal Family” would extend. From remarks made prior to the application it was evident that the Attorney General felt that the furthest limit in which applications on the general ground only should be entertained was in the case of a grandchild of a Sovereign or former Sovereign.
8) Thereafter it seems to have been accepted that the wills of children and grandchildren of a Sovereign should be sealed up without any special reason, but that for more distant relatives (for example the widow of a son of a Sovereign, as in the case of the late Princess Marina, Duchess of Kent in 1968) some special ground was desirable.
THE CHANGE IN THE PRACTICE IN 1981
9) In 1981 there was a review which led to an agreed change in the practice. Under the revised practice Royal will applications were divided into two categories, firstly those in respect of senior members of the Royal Family defined as persons who were children or grandchildren of a Sovereign and secondly those in respect of members of the Royal Family more remotely related. In the first category there was no need to consult the Sovereign and the Attorney General did not oppose. In the second category, the Attorney General, acting in the public interest, considered the merits of the application and offered his advice to Her Majesty, inviting her to make her views known to him. The Attorney General then attended the hearing and, taking the Queen’s views into account, opposed or did not oppose the application.
THE NEW PRACTICE
Senior members of the Royal Family
10) For this purpose, a senior member of the Royal Family means:-
· 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 Sovereign is to be informed of any application to seal the will of a
senior member of the Royal Family. The Attorney General attends the
hearing of the application.
Members of the Royal Family more remotely related
11) In the second category the Attorney General, acting in the public interest, will consider the merits of the application and offer his advice to Her Majesty, inviting her to make her views known to him. The Attorney General will then attend the hearing, and, taking the Queen’s views into account, will oppose or not oppose the application.
12) This revised practice has been agreed with the President and the Attorney General and is embodied in two notes, marked “A” and “B” respectively (copies of which are annexed hereto), Note A recording the principles to be applied to such applications and Note B setting out the procedure.
13) The application for an order is made by summons6 which served upon the Treasury Solicitor on behalf of H.M. Attorney General, together with a copy of the will, and is supported by an affidavit filed on behalf of the applicant. The application is made on behalf of the applicant usually (but not invariably) by counsel to the President of the Family Division in her private room at a time convenient to the President and the Attorney General. The Attorney General attends without a junior.
14) No copies of the will or affidavit in support of the summons are made. The Attorney General is supplied (under cover) with the copies furnished by the applicant’s solicitors, to whom they are returned after the hearing.
APPLICATIONS FOR AN ORDER THAT THE WILL BE SEALED UP WITHOUT MAKING A COPY FOR RECORD
1) The history of applications to seal up the wills of members of the Royal Family shows that since 1945 successive Presidents have accepted that it is in the public interest that the privacy of the Sovereign should be protected by sealing wills of senior members of the Royal Family. For this purpose, a senior member of the Royal Family means:
· the Consort of a Sovereign or former Sovereign;
· a child of a Sovereign or former Sovereign; or
· 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
In determining the status of members of the Royal Family more remotely related Her Majesty’s views are to be taken into account.
2) The Sovereign is to be informed of any application to seal the will of a senior member of the Royal Family. In the case of a member of the Royal Family more remotely related, Her Majesty’s views are to be obtained and made known to the President of the Attorney General.
3) Her Majesty’s views must be sought on an application to unseal a will which has previously been sealed up. Those views will be made known to the President on the hearing of the application.
APPLICATION FOR AN ORDER THAT THE WILL BE SEALED UP WITHOUT MAKING A COPY FOR RECORD
1) An application to seal up a will is made on behalf of the personal representatives. In the case of a senior member of the Royal Family, the personal representatives will normally have informed the Palace or the Queen’s solicitors before making the application. In the case of a member of the Royal Family more remotely related, the personal representatives must have consulted the Palace or the Queen’s Solicitors.
2) The application is made by summons7 which is served upon the Treasury Solicitor on behalf of the Attorney General.
3) The Treasury Solicitor will be responsible for ensuring that these arrangements have been complied with before the summons is heard.
4) In the case of a member of the Royal Family more remotely related, acting in the public interest, the Attorney General will consider the merits of the application and offer his advice on it to Her Majesty. Her Majesty will then be invited to make her views known to him. The Attorney General attends the hearing of an application to seal-up a Royal will. In the case of a member of the Royal Family more remotely related, acting in the public interest and taking the Queen’s views into account, he will oppose or not oppose the application.
5) Where an application is made to unseal a Royal will, Her Majesty’s wishes must be discovered and communicated to the Attorney General. He will intervene in the application if he considers that it would not be in the public interest for the will to be opened.
see for example Tristram and Coole’s Probate Practice 29th Edition paras 4.242 to 4.244 at page 150.
2 The reason is that the court has no jurisdiction to make a grant in respect of the estate of a deceased Sovereign, just as the Court has no jurisdiction over the Sovereign in his or her lifetime. Section 5 of the Crown Private Estates Act 1862 also provides that a will of the private estates of the Sovereign “shall not require publication”.
3 This has replaced section 170 of the Supreme Court of Judicature (Consolidation) Act 1925, as substituted by the Administration of Justice Act 1928, section 11 (and as further amended by the Public Records Act 1958 and by the Administration of Justice Act 1970).
4 Rule 58 of the Non-Contentious Probate Rules 1987 (Inspection of copies of original wills and other documents) confers on a district judge or registrar power to order that a testamentary document is not to be open to inspection. It provides:
An original will or other document referred to in section 124 of the Act shall
not be open to inspection if, in the opinion of a district judge or registrar, such inspection would be undesirable or otherwise inappropriate.”
The text books give little or no indication as to the circumstances in which this power is exercised.
5 Principal Registry” is defined in section 128 as “the Principal Registry of the Family Division; “probate rules” is defined as “rules of court made under section 127”.
6 When this Note was revised, the Civil Procedure Rules had not been applied to non-contentious probate applications. If and when they are, it is likely that the application will be by way of an Application Notice with a Witness Statement in support.
7 When this Note was revised, the Civil Procedure Rules had not been applied to non-contentious probate applications. If and when they are, it is likely that the application will be by way of an Application Notice with a Witness Statement in support.