Richards & Anor v Morgan

In contentious probate proceedings, a default judgment cannot be obtained. The probate court has an investigatory role, and an order admitting a will to probate in solemn form should not be made by default. An application for summary judgment must be made under Part 23 of the Civil Procedure Rules, and rule 23.8 requires a hearing unless the parties agree disposal without one or the court considers a hearing inappropriate. Where a lower court makes a probate order without apparent consideration of evidence on testamentary capacity and without reasons, reconsideration or an explanation may be required. Permission was not determined; the application was adjourned on notice.

Neil Aston Richards and David Geoffrey Lewis, solicitors named as executors in Kathleen Morgan’s will, brought contentious probate proceedings against her son, Anthony Morgan. He challenged the will on the ground that his mother lacked testamentary capacity. The High Court ordered a trial on written evidence and later admitted the will to probate in solemn form, ordering Anthony Morgan to pay the costs. The order gave no reasons and did not show whether the defendant’s witness statements had been considered. The Court of Appeal was asked for permission to appeal. The central issues were whether the proceedings had been determined in accordance with the procedural requirements for contentious probate and whether the matter should be reconsidered by the High Court.

Disposition. The application for permission to appeal was adjourned to an on-notice hearing before a two-judge court. If permission were granted, the appeal was to follow immediately.

1. Contentious probate proceedings are specialist proceedings under Part 49 of the Civil Procedure Rules. A default judgment cannot be obtained in such a claim because the probate court has an investigatory role and orders are not made by default.
2. An application for summary judgment in contentious probate proceedings must be made under CPR 23. CPR 23.8 requires a hearing unless the parties agree that the matter may be disposed of without a hearing or the court considers that a hearing would be inappropriate.
3. The papers suggested that the High Court may have proceeded solely on the claimants’ affidavits, without hearing the defendant, considering his lodged witness statements, or addressing the evidence concerning testamentary capacity. The absence of reasons prevented the Court of Appeal from determining what material had been considered or why it had been rejected.
4. Lord Justice Chadwick formed the provisional view that, if permission were granted, the matter should be remitted to the judge either to consider the material in the bundle or to explain in a judgment why the defendant’s evidence had been rejected. This was not treated as an application to admit fresh evidence on appeal.
5. The parties were informed that they could seek a consent order remitting the matter to the Cardiff County Court, thereby avoiding a further hearing.

• Court of Appeal (Civil Division): On 18 October 2001, the application for permission to appeal was adjourned to an on-notice hearing before a two-judge court, with the appeal to follow if permission was granted: [2001] EWCA Civ 1592.
• High Court of Justice, Chancery Division: On 1 March 2001, His Honour Judge Moseley QC admitted the will to probate in solemn form and ordered Anthony Morgan to pay the costs.