Randall v Randall

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeMaster of the Rolls,Lord Justice McCombe,Lady Justice King
Judgment Date27 May 2016
Neutral Citation[2016] EWCA Civ 494
Docket NumberCase No: A3/2014/3636

[2016] EWCA Civ 494






Royal Courts of Justice

Strand, London, WC2A 2LL


The Master of the Rolls

Lord Justice McCombe


Lady Justice King

Case No: A3/2014/3636

Colin Alan Randall
Hilary Ann Jocelyn Randall

Jeffrey Littman (instructed by Colin Randall) for the Appellant

Mark Baxter (instructed by Rix & Kay LLP) for the Respondent

Hearing date: 10/05/2016

Master of the Rolls

The appellant (H) and the respondent (W) are divorced. As part of their divorce settlement, they agreed that, if W were to inherit more than £100,000 from her mother, she would keep the £100,000 and the balance would be split equally between H and herself. On her death, W's mother left £100,000 to W in her will and (after some small specific legacies) the balance of her estate (estimated at £150,000) to W's children. H brought a probate claim to challenge the validity of the will alleging that it was not duly executed in accordance with the provisions of section 9 of the Wills Act 1837. If, as H contends, the will was invalid, he would be entitled to an estimated £75,000. W contends that H has no standing to bring such a claim. Whether this contention is sound as a matter of law was determined as a preliminary issue by Deputy Master Collaço Moraes on the assumption that, as alleged by H, "it does not appear that the deceased intended by her signature to give effect to the alleged will". The Deputy Master decided that H has no sufficient interest in the will and therefore has no standing to bring the claim. H appeals with the permission of Lewison LJ.


W will not seek the revocation of the grant of probate. Yet if the will is invalid (as on the assumed facts it is), she and her children are taking advantage of invalid testamentary dispositions so as to defeat H's entitlement to half of the balance of £150,000. In practice there is no route by which the will can be brought before the court to be proved in solemn form or the grant of probate be revoked unless in a probate claim brought by H.

The issue


The starting point is Rule 57.7 of the Civil Procedure Rules ("CPR") which provides that, to bring a probate claim "(1) the claim form must contain a statement of the nature of the interest of the claimant and of each defendant in the estate". It is common ground that the effect of rule 57.7 is that a probate claimant must claim an "interest" in the estate. Para 4 of PD 57 provides:

"In giving case management directions in a probate claim the court will give consideration to the questions—

(1) Whether any person who may be affected by the claim and who is not joined as a party should be joined as a party or given notice of the claim…."


The central issue in this case is whether the creditor of a beneficiary of an estate has an "interest" in the estate. Having reviewed the earlier case-law, the Deputy Master concluded:

"91. In my judgment, on a proper analysis of the authorities, whether a person has an interest in the estate is to be determined by a reference to the touchstones of: (1) whether they are personal representatives, (2) the grant of representation, and (3) the entitlement to a distribution of the estate. The court is concerned with identifying an interest in the estate and not whether someone is 'interested' in the estate. Just as a creditor of an estate, while interested in the estate, has no interest in the estate, so in my judgment a creditor of a beneficiary of the estate has no interest in the estate, though he is possibly interested in the estate.

92. While it is not necessary for my decision, in my judgment to construe an 'interest in the estate' to include a claim by a creditor of a beneficiary of an estate will widen the gateway to an extent that would render the requirement of little if any value.

93. The safeguard provisions of section 121 of the Senior Courts Act 1981 and the general supervisory role of the court in probate proceedings provide the mechanism for the court to intervene when it considers it appropriate to do so. It follows that in a case where there is a risk of injustice the courts can intervene to ensure that a wrong is not perpetrated."


Mr Baxter seeks to support this conclusion. As expressed in his skeleton argument, Mr Littman submits that "the scope of the 'interest' required is (or should be) delimited more broadly so as to include those whose interest lies in ensuring that a beneficiary receives the gift he should receive, in order to take a benefit whether directly or indirectly out of that gift".


There is also an issue between the parties as to whether the Deputy Master was right to hold that the rule that a creditor of a beneficiary of an estate has no "interest" in the estate was a "substantive requirement of the common law" rather than a rule of practice and procedure.

The history and previous authority


CPR 57.7 replicates a long-standing requirement that a party to a probate claim must have an "interest" in the estate. In Tristram's " The Contentious Practice of the High Court of Justice in respect of Probates & Administrations" (1 st ed 1881), Dr Tristram wrote at p 80:

"The foundation of title to be a party to a probate or administration action is interest – so that whenever it can be shown that it is competent to the Court to make a decree in a suit for probate or administration, or for the revocation of probate or of administration, which may affect the interest or possible interest of any person ( Kipping and Barlow v. Ash, 1 Roberts. 270; 4 N. Cas. 11; Crispin v. Doglioni, 2 S. & T. 17; 29 L.J. 130); such person has a right to be a party to such a suit in the character either of plaintiff, defendant or intervener."


These words have appeared (with immaterial amendments) in subsequent editions of Tristram and Coote's " Probate Practice".


In each edition, the authors have cited Kipping and Barlow v Ash (1845) 1 Rob 270, a decision of the Prerogative Court, as an authority in support of the statement in the text. In that case, the devisor by his will disposed of all of his personal estate. Under the will, he devised real estate to his brother and, in the event of his brother dying in the devisor's lifetime (as occurred), to his brother's children. Under the will they had no interest in the personalty. By a codicil, the devisor gave the children pecuniary legacies and revoked the devise to them of the real estate. A caveat was lodged on behalf of the children and the proctor assigned to them declared that he opposed the codicil. The proctor for the executors denied the interest of the children to oppose the codicil saying that "by the law and practice of this Court, they are not entitled to oppose the codicil in this Court". Sir Herbert Jenner said:

"It has been argued for the executors that the other party has no interest to oppose the codicil, as under the will their only claim is to a portion of the real estate; that it is by the codicil alone they are entitled to any share of the personalty. I am not prepared to say that it is not competent to the party to oppose the codicil, for instance, on the score of fraud; that they can be precluded from shewing fraud in the transaction. Though at present that is merely a suggestion, still I know not what case may be made out against the codicil. I am therefore of opinion that they have an interest, and that the bare possibility of an interest is sufficient."


The earlier decision of the Prerogative Court in Menzies v Pulbrook and Kerr (1841) 2 Curt 846 has assumed some importance in the present case. Menzies, who was a creditor of the estate of the deceased, wished to contest the validity of the will and oppose probate passing to the executor. Menzies opposed the application by the executor for administration of the deceased's effects. The question for the court was whether creditors of the estate have the right to challenge the validity of a will. After an analysis of previous case-law, all of which the judge said supported the proposition that a creditor of an estate has no right to oppose a will and that the only right he has is to have the estate administered by someone, he said:

"These cases then appear to me to establish the rule of practice as contended for by the counsel for Menzies, and to be precedents which the Court must adhere to, unless the principle on which they are founded be shewn to be unsound. Now, some cases were cited in which a creditor has been allowed to contest the right to administration against the next of kin; but in those cases it appeared that the next of kin had no interest in the property, and they do not effect the question before the Court.

I apprehend that a creditor, except by the practice of the Court, has no right to the administration of the estate of a deceased; he has no right by the statute: he is the appointee of the Court and I do not know, if circumstances shewed that the creditor was not a proper person, that the Court might not appoint another person.

The rule contended for in this case is founded in reason and sound sense. Sir George Lee says, "if a creditor was admitted to dispute the validity of a will, it would create infinite trouble, expense, and delay to executors," and I think much inconvenience; if a creditor has a right to oppose a will, he has an equal right to call in a probate, and put the executor upon proof of the will in solemn form; and if one creditor has this right, every creditor has it; and if a creditor has a right to oppose a will, an executor has a right to...

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