Probate Law in UK Law

The effect of mutual wills upon the distribution of the estate under a later will which is admitted to probate is a matter for the Chancery Division applying the law of trusts; it is not a matter of probate law and practice. The nature of that litigation is not inquisitorial: it is adversarial and, not infrequently, very adversarial as the two families disunited by death battle for their perceived true inheritance.

I conclude that the executors did not conduct themselves reasonably. They accepted service on behalf of all defendants yet they assumed the responsibility at first of putting in the only defence, making no admissions and putting the claimants to proof of the agreement to treat the mutual wills as irrevocable. They also took the bad point that section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 applied.

There is no doubt that a creditor of an estate does not have sufficient interest in an estate to bring a probate claim and that Menzies is still good law. The interest of the creditor of a beneficiary is to ensure that the beneficiary receives what is due to him or her under the will or on an intestacy. The interest of a creditor of an estate is to ensure that there is due administration of the estate. The creditor of the estate is not interested in which beneficiary receives what.

Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries.

In exercising its jurisdiction in probate matters the High Court is acting as successor to the Prerogative Court of Canterbury, and, in so far as the matter is not regulated by Act of Parliament or Rules of Court, it applies the law and practice of that Court. A judgment in a probate action pronouncing in favour of a will and granting probate thereof in solemn form is not comparable with a common law judgment in personam.

The Committee recommended (para 5.25) that the Rules Committee should be given power to cover by rule specific cases falling within a formula embodied in primary legislation. It rejected the solution of legislating for the specific cases. It accepted that the necessary formulation would not be easy, and it accepted that it had not been able to devise any entirely satisfactory formula.

Although this is a civil contempt, it partakes of the nature of a criminal charge. The rules as to criminal charges have always been applied to such a proceeding. It follows that the accused is not bound to give evidence unless he chooses to do so.