Re Jolley, deceased ; Jolley v Jarvis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE DIPLOCK |
| Judgment Date | 21 January 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0121-2 |
| Court | Court of Appeal |
| Date | 21 January 1964 |
In the Estate Of Elizabeth Florence Jolley Deceased.
[1964] EWCA Civ J0121-2
Lord Justice Willmer
Lord Justice Danckwerts and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
MR J. A. PETRIE and MR TYLER (Instructed by Messrs. A. L. Brydea & Williams) appeared on behalf of the Appellant (Citor-Appellant).
MR H. S. LAW (Instructed by Messrs. Batohelor, Fry. Coulson & Border) appeared on behalf of the Respondents (Citees-Respondents)
LORD JUSTICE wiLLMERs This appeal, which is from two decisions of Mr Justice Payne, raises a rather obscure problem of probate practice, and comes before the Court in somewhat unusual circumstances The natter arises in connection with the testamentary dispositions of the deceased, Elisabeth Florence Jolley,who died on the 10th Deoember, 1961. The Appellant Is the only son of the deceased, and claims to be the only person entitled as next of kin on an intestacy.
At all material 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 deceased purported to make a will on the 5th April, 1961, whereby she appointed the Respondents as executors. The two Respondents are the managing clerk to the 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 extent. The Appellant, on the other hand, gets nothing whatsoever out of the will.
On the 26th January, 1962, the Respondents obtained a grant of probate of the will in common form. On the 15th August, 1962, the Appellant caused a citation to be issued against the Respondents (as well as a number of other beneficiaries under the will) which recited that the Respondents 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 paper 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 devolves to and vests in the personal representatives 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 absence.
The Respondents and a number of other beneficiariesappeared to the citation, but it seems that the process of serving the large number of benefioiaries took some months, and the last of them only entered an appearance on the 10th March, 1963.
Following this, the Respondents, 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 the 30th May, 1963, the Respondents issued a Summons before the Registrar asking for directions as to the commencement of proceedings. Upon that Summons the Kegistrar made an Order to the effect that, unless the Appellant issued a writ in the matter within 56 days, the proceedings arising from the citation should be discontinued, that the caveat entered should cease to have effect and that the grant of probate of the 26th January, 1962, should be handed out to the executors.
The Appellant appealed from the decision of the Registrar to the learned Judge, Mr Justice Payne. He also served Notice of Motion dated the 17th July, 1963, for an order, pursuant to Rule 47 of the Non-Contentious Rules, for a grant of administration to himself. Rule 47 provides, by sub-rule (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 Mr Justice Payne on the 24th July, 1963, when he dismissed the appeal from the Registrar and also dismissed the Appellant's Motion. Ke did, however, grant leave to appeal from his decision.
The Appellant's case is that the learned Judge came to a wrong conclusion, and that it is for the Respondents as executors to start an action to establish the validity of thewill. 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 Rules and to obtain a grant of administration himself. He asserts that he is prejudiced by the Order made by the learned Judge requiring him to insitute proceedings as Plaintiff because, first, he may be required to furnish security for costs, and, secondly, he will have to accept the burden of proving affirmatively 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.
The reasons for the learned 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 overlooked, the fact that there has been in this case a probate of this will in common form. The procedure is quit clearly set out in my view both in Mortimer and in Tristram and Coote. ln these circumstances 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 probate 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 text book by Mr Mortimer. That text book is of such standing that we can, I think, at least regard it as of high persuasive authority. On page 513 of the second edition, the learned author says this: "When probate 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 one: "The party cited, if an executoror 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 concurrently with the citation. An administrator on intestacy must similarly enter an appearance to the writ, issued with the citation, if he wishes to resist revocation. 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 proceedings and for the redelivery out to him of the grant". Then, in another passage, on page 550, under the heading "Actions for the revocation of grants", the learned author says this: "The preliminary steps to be taken by a pai-ty 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, followed 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...
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