Chitolie v Chitolie & Anor

A Court of Appeal is not the forum for a first-instance investigation into whether a will was validly made, whether a probate application was properly presented, or why a grant issued. Those matters must be raised in a properly constituted contentious probate claim in the High Court. Under section 107 of the Supreme Court Act 1981, the relevant question is whether it appeared to the registrar that another application was pending. Permission to issue a writ of possession after three months is a safeguard requiring consideration of any change of circumstances and an opportunity to be heard. Where the possession order remains unchallenged and no substantive change is shown, a technical objection to a later permission order has no real prospect of success.

Julietta Christmas died owning property in London. Probate was granted to her brothers on 13 June 2001. Dick Chitolie, another brother, had lodged an earlier probate application and sought revocation of the grant, alleging that the proved will was invalid and that the grant contravened section 107 of the Supreme Court Act 1981.

Jacob J refused an initial application because no formal application had been served. Pumfrey J later dismissed the formal application without prejudice to properly constituted contentious probate proceedings. Meanwhile, the executors obtained a possession order. After one writ was set aside, Park J permitted the issue of another writ. The Court of Appeal considered whether these matters could be investigated summarily and whether the later permission order was lawful.

1. Applications refused. The application for permission to appeal against Pumfrey J’s order, the ancillary application concerning the Master of the Rolls, and the application for permission to appeal against Park J’s order were all refused. There was no order for costs.
2. Proper route for probate disputes. The Court of Appeal was not the forum for investigating for the first time whether the will was validly made, whether the probate application was proper, or why the grant had issued. Those matters required evidence and a trial in the High Court. At the relevant time, the Practice Direction supplemental to Civil Procedure Rules Part 49 defined a probate claim and required it to be commenced in the High Court out of Chancery chambers. Pumfrey J had therefore made the only sensible order by dismissing the summary application without prejudice to contentious probate proceedings.
3. Competing probate applications. Section 107 of the Supreme Court Act 1981 raised a prima facie issue because an earlier application appeared to have been pending. The critical question, however, was whether that was how it appeared to the registrar, or whether another reason justified the grant, as contemplated by rule 5(3)(c) of the Non-Contentious Probate Rules 1987. That issue had to be investigated in a probate claim. Any later application for a grant would also require consideration of the applicant’s standing and credible evidence of another will.
4. Permission for a writ of possession. The possession order remained unchallenged and enforceable. Paragraph 7 of SC 113 required permission before a writ could issue after three months. Its purpose was to ensure that circumstances had not changed and that the person affected had an opportunity to be heard. Permission had been considered twice, the delay was explained, and no substantive change was advanced. The technical objection to Park J’s second permission order had no prospect of success.

1. Court of Appeal (Civil Division): Refused permission to appeal against Pumfrey J’s order of 8 October 2001, refused the ancillary application, and refused permission to appeal against Park J’s order of 14 February 2002.
2. High Court, Pumfrey J: Dismissed the application to revoke the grant, without prejudice to properly constituted contentious probate proceedings.
3. High Court: A possession order was made by Master Moncaster and later varied by Park J. A subsequent writ was set aside, after which Park J permitted the issue of a further writ.