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O'Brien v Seagrave & Anor [2007] EWHC 788 (Ch)

Appeal where the claimant, who is pursuing a claim under the Inheritance Act (Financial Provison for Dependents), seeks to bring a probate action. Appeal allowed.

The central question is the nature of the "interest" which a Claimant must have to be able to bring a Probate action. HHJ Mackie concludes that "The Claimant has a clear and accepted financial interest in the outcome of this dispute and one would therefore in general expect her to have a right to bring an action of this kind".


Neutral Citation Number: [2007] EWHC 788 (Ch)
CLAIM NO: HC06C02846


Royal Courts of Justice
London WC2
23rd March 2007

B e f o r e :






Mr Mark Dencer (instructed by Knowles Benning) appeared for the Appellant Claimant
Mr Giles Harrap (instructed by Dixon Street) appeared for the Respondent Defendant.


Crown Copyright ©

This appeal concerns the nature of the "interest", a requirement currently set out in CPR 57.7, which a Claimant must have to be able to bring a Probate action. In particular can a Claimant who will receive nothing either under the contested will or on intestacy, but whose admitted right to bring a claim under the Inheritance Act would be affected by the outcome, bring a probate action? The appeal is against the order made by Master Price on 2 November 2006 striking out the Claim Form because it failed to disclose reasonable grounds for bringing a Probate claim and to comply with CPR 57.7. The Master gave permission to appeal and expressed reservations about the outcome with which he felt uncomfortable.

The parties and the background
The Claimant Ms O'Brien for some 12 years lived and shared her life with Mr Derek Seagrave who died on 17 January 2005. The Second Defendant is the former wife of Mr Seagrave from whom she separated in about 1992. They divorced and a decree nisi was obtained on 3 August 2004. The First Defendant is the son of the Second Defendant but not of Mr Seagrave and is thus the Deceased's step son. The Estate is modest .about £80,000. Some time after Mr Seagrave's death on 17 January 2005 a will was produced by the Defendants who obtained a grant of probate on 2 September 2005. The beneficiaries under the will are the First Defendant and his children. On 22 March 2006 the Claimant brought this action seeking a declaration that the will was invalid, that the Deceased died intestate and that the probate be revoked on the grounds that the will was forged by the First Defendant or obtained by undue influence. The Claimant relies upon the facts that the will was created without any solicitor involvement but witnessed by the partner and a friend of the First Defendant, that the signature on the will of DM Seagrave reads "J Seagrave", that the Deceased apparently mentioned the will to no one prior to his death and upon the improbability of the Deceased appointing to be one of his executors his long estranged and very recently divorced ex wife. There will also apparently be evidence that the Deceased could not have been at the home of the First Defendant at the time he is said to have executed the will there. The Defendants maintain that the signature of the deceased is genuine and was witnessed by reliable witnesses, that the Deceased had a continuing and caring relationship with his ex wife, that he was capable of driving to the home of the First Defendant at any time up until his death and that while the signature on the will looks like "J Seagrave" it is the Deceased's true signature.

If the will is upheld then the Claimant's claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975 will be brought in a context where the only surviving relation by blood or marriage will be the deceased's brother James. He does not wish to be party to any proceedings and is an elderly gentleman well provided for unlikely to resist the Claimant's action. If the will is upheld then the Defendants will no doubt vigorously assert the interests of the infant beneficiaries. It is conceded that the Claimant's statutory claim will be more valuable on intestacy than if the will is upheld. But the Defendants say the Claimant cannot bring this action because she has not stated, and more importantly does not have, an interest to bring this action.

The issue and the contentions of the parties
CPR 57.7(1) states "the claim form must contain a statement of the nature of the interest of the Claimant and of each Defendant in the estate". CPR 57.7(2) states "if a party disputes another party's interest in the estate he must state this in his statement of case and set out his reasons".

The Defendants take no point on the procedural matter of the interest not being set out in the pleading, their concern of substance being that if the Claimant is wholly successful she gains no interest or possible interest in the estate by the proceedings. The only effect of the Claimant winning this case would be that the Estate would pass to the Deceased's brother James. The Defendants submit that the Claimant is seeking a collateral advantage for other proceedings that she will bring separately under the Act. Mr Harrap submits that the relevant law is set out in Tristram & Coote's Probate Practice (29th1 Edition) at 610. In essence "the foundation of a title to be a party to a probate claim is interest". He accepts that that includes "possible interest" but only in the sense of a possible property benefit however slight resulting from the outcome. The only interest of the Claimant is under the Act for reasonable financial provision predicated on the absence or insufficiency of what she receives under the will or on intestacy. Her claim is not one for the probate court to establish. Mr Harrap submits, correctly, that there is no reported case of a right to claim under the Act ( or its predecessor) being held to amount to an interest for the purposes of a probate claim. Mr Harrap submits that the purpose of requiring a Claimant to have an interest is to exclude meddlers and to reduce the risk of the beneficiaries under an estate facing the financial burden of unnecessary and inappropriate litigation, perhaps, as in this case by someone with limited or no funds available to meet a costs order.

Mr Dencer for the Appellant Claimant sets out a range of grounds which he says justifies his client being able to bring this action. First he submits that it offends the overriding objective to countenance the possibility of a forger getting away with it simply because there is no Claimant with sufficient "interest" to challenge his actions. He discounts the likelihood of the High Court taking action of its own motion under Section 121 of the Supreme Court Act 1981 in a case like this. Section 121(1) provides "where it appears to the High Court that a grant either ought not to have been made or contains an error, the court may call in the grant and, if satisfied that it would be revoked at the instance of a party interested, may revoke it".

He next argues that an Inheritance Act claim is an interest under CPR 57.7. The three leading nineteenth century authorities add nothing because they were decided at a time when no Inheritance Act claim existed and when the only right to participate in an estate was by will or intestacy! The granting of an additional right by statute to potential beneficiaries should lead the court to take a broader construction of "interest" in order to include it. He referred to an unreported decision of David Richards J, Green v Briscoe (Lawtel 9/5/2005 which in turn mentions an aspect of the Order of the unidentified Master which had not been appealed. The Master dismissed a challenge by a former wife of a deceased who had died four days after the dissolution of the marriage on the basis that she did not have an interest entitling her to contest the will. He however, refused the executrix's request for permission to discontinue her counterclaim so that it should continue as a means of determining the will. The point was not appealed. He also relied upon a passage in Tristram and Coote at 28.04 suggesting that a purchaser of part of an estate from an administrator has a sufficient interest in the estate to bring an action. If that is correct it indicates the "interest" can be looked at broadly. However, the authority cited for that proposition does not support it and appears to have been referred to by the author in error. Mr Dencer next submits that the rule does not and should not apply where forgery is credibly alleged and cites two cases, Kipping and Barlow v Ash [1845] 1 Rob Eccl 270 and Hingeston v Tucker [1862] 2 SW&TR 596. He accepts however that the relevant observations in these cases are, at best, passing ones. He next submits that the rule should be abolished entirely but concedes that that is a route not available to a first instance court. Finally he says that, if all else fails, the court should adopt the solution devised in Green v Briscoe although that would involve creating a more explicit counterclaim than that which currently appears on the pleadings.

Decision of the Court
I first dispose of Mr Dencer's fall back arguments. First he accepts that it is not open to the court to abolish the rule, (even should it be desirable to do so). Secondly the two cases which he cites to suggest that an interest is not needed where there is credible forgery do not begin to have enough weight to overcome the mandatory requirement found in CPR 57.7. Thirdly, if the Claimant's claim under the Act does not qualify as an interest, I can see no justification for devising an artificial solution such as that adopted by the Master in Green v Briscoe, to circumvent a clear CPR requirement. As I see it the Claimant can only take this case forward if she has a legitimate "interest" within CPR 57.7.

The Claimant has a clear and accepted financial interest in the outcome of this dispute and one would therefore in general expect her to have a right to bring an action of this kind. There is no authority which holds that a claim under the Act is not capable of being an "interest". Furthermore there is not even a formulation or definition of "interest" in a decided case with which a broad construction would be inconsistent. Through no fault of the Master concerned, the reasons for his decision in Green v Briscoe are not available and, even if they were, while entitled to respect ,they would not bind me. It is true that judgment for the Claimant will not of itself, produce an immediate financial result but that is equally true of other areas of litigation where a Claimant is permitted to go ahead, most obviously many claims for declarations. The court has in recent years, increased the range of circumstances where it will permit a party to seek a declaration as to its rights or as to the existence of facts or as to a principle of law. If this claim fell not within the probate jurisdiction but more generally within the CPR it seems to me that the answer to the question whether she would be recognised as having a sufficient interest so as to be able to seek a declaration would be- "yes of course". I do not accept that a construction of "interest" to include an interest under the Act would open the flood-gates, as Mr Harrap submits it might. The facts of this case are unusual but if there were others like it, this would merely emphasise the importance of removing a potentially unjust obstacle. There is a further practical reason why one should construe, "interest" to include a potential Inheritance Act claim. If this action could not proceed but the Claimant's claim under the Act went ahead, then the judge, when considering all the circumstances, might well feel considerable unease about proceeding on a possibly false assumption about the validity of the will. That might in turn lead to Section 121 being invoked and to further delay, uncertainty and expense for this small Estate. In my judgment therefore the Claimant's right to bring proceedings under the Act is, against the background facts of this case and upon the basis of the authority cited to me, a sufficient interest to permit her to proceed as a Claimant under CPR 57.

The appeal will be allowed. In order to save time and expense I gave my decision to the parties very briefly on the spot, made directions for the future conduct of this case and said that I would produce a short written decision,. I have made no reference to the reasoning of Master Price only because no transcript or summary was available at the time the appeal was heard. I should point out that I have had the advantage of arguments and material which were not before the Master. I shall be grateful if Counsel will let me have suggested corrections of the usual kind within seven days of receiving this draft. There is no need for anyone to attend the handing down of the judgment.