Michael Johnson v His Majesty's Attorney-General

Under rule 58 of the Non-Contentious Probate Rules 1987, inspection of a will may be restricted where it would be undesirable or inappropriate. The threshold is clear but not especially high. The court must weigh the interests supporting publication against privacy and protection from harm. A real risk of serious physical harm or death to persons associated with the deceased may justify sealing, particularly where publication serves no substantial practical purpose. Articles 2, 3 and 8 of the ECHR may reinforce that conclusion. Ancillary orders may protect the effectiveness of the sealing order.

Michael Johnson applied under section 124 of the Senior Courts Act 1981 and rule 58 of the Non-Contentious Probate Rules 1987 for the will of Frank Cowley, formerly known as Freddie Scappaticci, to be sealed for 70 years.

The deceased had been publicly alleged to be the agent known as Stakeknife and had faced continuing threats and media interest. The Attorney-General supported the application. The central issues were whether inspection would be undesirable or inappropriate, whether Convention rights supported sealing, and what ancillary orders were necessary.

1. Application granted. The will was sealed for 70 years and could not be inspected without the consent of the Chancellor of the High Court. The hearing was properly held in private because publicity would have defeated the object of the application.
2. Rule 58 of the Non-Contentious Probate Rules 1987 creates an exception to the ordinary presumption of openness. “Undesirable” and “inappropriate” bear their ordinary meanings. Exceptional circumstances are not required, and satisfying either condition is sufficient.
3. The court weighed the interests supporting publication, including tracing legatees, notifying creditors, identifying another will and enabling potential claims under the Inheritance (Provision for Family and Dependants) Act 1975. Those interests had little weight because the will was standard, the estate would be professionally administered, and relevant persons knew of the death.
4. The decisive factor was the real risk of serious physical harm or death to the applicant and persons named in the will through perceived association with the deceased. Publication was therefore both undesirable and inappropriate.
5. The alternative case under articles 2, 3 and 8 of the ECHR was also made out and reinforced the rule 58 conclusion.
6. Ancillary orders restricted access to court-file documents, permitted a grant without annexing the will, and allowed the inheritance tax account to be filed without providing HMRC with a copy. The Attorney-General’s costs were payable from the estate.

First-instance application. No appeal or earlier decision in the present litigation was stated.