Green v Briscoe

A person may challenge a will in a probate claim only if able to show an interest, or possible interest, in the deceased’s estate. Mere financial interest in the outcome, including an interest arising from an Inheritance Provision for Family and Dependants Act 1975 claim, is insufficient. Nevertheless, the court may retain and try a probate claim where the validity of the will raises a real issue and adjudication is important to the administration of justice.

Mrs Green brought claims concerning her former husband’s estate. One sought reasonable financial provision under the Inheritance Provision for Family and Dependants Act 1975 and alleged undue influence concerning a property transfer. The other sought revocation of the grant of probate and a pronouncement against the validity of a will, alleging non-compliance with the Wills Act 1837.

Mrs Briscoe, the executrix, contended that Mrs Green lacked a sufficient interest to challenge the will and sought dismissal or discontinuance of the probate proceedings. The central issues were whether Mrs Green had the necessary interest and whether the court should nevertheless require the will’s validity to be tried.

1. The probate counterclaim was retained and directed to trial. Mrs Green did not establish the kind of interest contemplated by CPR 57.7, but the court considered that the validity of the will raised a real issue requiring adjudication.

2. A person seeking to contest a will must show an interest, or possible interest, in the estate. Being interested in the estate because of a separate statutory claim is not the same as having an interest in it. The older authorities, including Hingeston v Tucker and Menzies v Kerr, were treated as consistent with that distinction.

3. Mrs Green’s claim under the Inheritance Provision for Family and Dependants Act 1975 made it important to identify who could conduct proceedings on behalf of the estate. It did not itself give her the requisite interest for a probate claim.

4. The court considered its power under section 121 of the Supreme Court Act 1981 to call in and revoke a grant. The evidence of the two attesting witnesses created a real issue about execution of the will. The court therefore considered adjudication necessary in the interests of the administration of justice.

5. Under CPR 57.11, the ordinary discontinuance rules in Part 38 did not apply to probate claims. The court retained the counterclaim for a short trial concerning the attesting witnesses.