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All England Law Reports/1964/Volume 1 /Re In the Estate of Jolley (deceased); Jolley v
Jarvis and Sands - [1964] 1 All ER 596

[1964] 1 All ER 596

Re In the Estate of Jolley (deceased); Jolley v Jarvis and Sands

COURT OF APPEAL

WILLMER, DANCKWERTS AND DIPLOCK LJJ

20, 21 JANUARY 1964

Probate - Grant - Solemn form - Procedure for compelling after grant in common form -
Caveat and citation by party disputing - Citor's duty to issue writ - Motion for grant of letters
of administration inapplicable - Whether "contentious business" - Non-Contentious Probate
Rules, 1954 (SI 1954 No 796), r 47 - Contentious Probate Business Rules, r 3.

Executors having obtained the grant of probate of a will in common form, the next-of-kin of
the deceased caused a caveat and a citation to be issued against them and against other
beneficiaries, reciting that the executors had obtained probate of the alleged will in
common form, that the deceased died intestate and that the probate ought to be called in,
revoked and declared null and void in law. The citation commanded the executors to leave
the probate in the Principal Probate Registry and required them to cause an appearance to
be entered in the registry and to propound "the said paper writing in solemn form of law" if
they thought it in their interests to do so, or to show cause why letters of administration of
the estate should not be granted to the next-of-kin. The executors and other beneficiaries
entered an appearance to the summons, but the executors took no step towards
propounding the will in solemn form. Instead they issued a summons for directions on
which the registrar made an order that the proceedings arising from the citation should be
discontinued, that the caveat entered should cease to have effect and that the grant of
probate should be handed out to the executors, unless the next-of-kin issued a writ in the
matter within fifty-six days. The next-of-kin appealed against the order and served a notice
of motion for a grant of administration to himself under r 47 of the Non-Contentious
Probate Rules, 1954. The appeal and motion were dismissed. On further appeal,

Held - (i) the order of the registrar must be confirmed since, as a matter of procedure, it
was for the party desiring to obtain revocation of probate of a will, or to compel an executor
who had proved a will in common form to propound it in solemn form, to issue a writ
making the executor defendant and alleging the invalidity of the will and not for those
desiring to establish the will to propound it in solemn form merely because probate in
 Page 2

common form was impeached (see p 600, letter i, p 559, letter a, and p 602, letters d and i,
post).

(ii) the motion was properly dismissed, because it was in conflict with the order requiring
the next-of-kin to issue a writ and r 47 applied only where the will had never been
propounded at all; moreover the present case was not one of non-contentious business,
but of contentious business, with the consequence that the Non-Contentious Probate
Rules, 1954, did not apply (see p 601, letters a and f, and p 602, letters c and f, post).

Appeal dismissed.

Notes

As to the procedure to obtain probate in solemn form, see 16 Halsbury's Laws (3rd Edn)
197, 198, para 344; and for cases on the subject, see 23 Digest (Repl) 111, 1118, 1119.

For the Non-Contentious Probate Rules, 1954 (SI 1954 No 796), r 47, see 7 Halsbury's
Statutory Instruments 308, and for the Contentious Probate Business Rules, r 3, see ibid,
238.

Cases referred to in judgments

Barry v Butlin (1838), 2 Moo PCC 480, 12 ER 1089, 23 Digest (Repl) 131, 1357.
[1964] 1 All ER 596 at 597

Merryweather v Turner (1844), 3 Curt 802, 163 ER 907, sub nom Merryweather v
Turner, 3 LTOS 6, 23 Digest (Repl) 111, 1118.

Appeal

The appellant appealed against decisions of Payne J dismissing at their hearing

together on 24 July 1963, two applications in the estate of Elizabeth Florence
Jolley, widow, deceased, made by the appellant. The applications were: (i) by way
of appeal by summons dated 24 June 1963, against an order of Mr Registrar
Kinsley dated 18 June 1963, made on the application "to show cause why
directions should not be given as to the commencement of proceedings in
connexion with the" estate, dated 30 May 1963, and made by the respondents,
claiming to be the executor and executrix of an alleged will of the deceased
bearing the date 5 April 1961. Mr Registrar Kinsley ordered that, unless the
appellant issued a writ in the matter within fifty-six days of the date of the order, the
proceedings arising out of the caveat and citation issued by him should be
discontinued and the grant of probate in common form of the alleged will be
handed out to the respondents. (ii) by way of original motion dated 17 July 1963,
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by the appellant, as the lawful son and only person entitled to the estate of the
deceased (on an intestacy), for an order pursuant to r 47 of the Non-Contentious
Probate Rules, 1954, that letters of administration of all the estate which by law
devolved to and vested in the personal representative of the deceased be granted
to the appellant or to such attorney as he might appoint until he should duly apply
for and obtain letters of administration of the estate.

The grounds of appeal were that Payne J erred in point of law because: (a) the
appellant, as the lawful son and the only person entitled to the estate of the
deceased on an intestacy, was of common right entitled to compel the executors of
the alleged will to prove the alleged will in solemn form, whether or not it had been
proved in common form; (b) there was no power to make the penal order made by
the registrar or for him to entertain the respondents' application at all, since it did
not specify what specific directions were applied for, and (c) the appellant was
entitled to apply by the motion for an order for a grant in common form to him or
his attorney of letters of administration to all the estate as if the alleged will were
invalid, and an order ought to have been made accordingly, the appellant having
duly performed all the requirements of r 47 of the Non-Contentious Probate Rules,
1954, and the times limited for appearance having in all cases expired and neither
the respondents nor any of the other persons cited who had entered an
appearance having proceeded to propounded the alleged will.

The cases noted belowa were cited in argument in addition to those referred to in
the judgments.

a
Core v Spencer (1796), 1 Add 374, Hoffman v Norris and White (1805), 2
Phillim 230, Newell v Weeks (1814), 2 Phillim 224, Bell v Armstrong (1822), 1
Add 365, Blake v Knight (1843), 3 Curt 547, In the Goods of Topping (1853),
2 Rob Eccl 620, Farlar v Farlar (1858), 1 Sw & Tr 124, In the Goods of
Morton, Morton v Thorpe (1863), 3 Sw & Tr 179, In the Goods of Riley [1896]
P 9, In the Goods of Dennis [1899] P 191, In the Goods of Bootle, Heaton v
Whalley (1901), 84 LT 570

J A Petrie and J C Tylor for the appellant.

H S Law for the respondents.

21 January 1964. The following judgments were delivered.

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WILLMER LJ.

This appeal, which is from two decisions of Payne J raises a rather obscure problem of
probate practice, and comes before the court in somewhat unusual circumstances. The
matter arises in connexion with the testamentary dispositions of the deceased, Elizabeth
Florence Jolley, who died on 10 December 1961. The appellant is the only son of the
deceased, and claims to be the only person entitled as next-of-kin on an intestacy. At all
material times, the appellant has been resident in India. He was there at the time of his
mother's death, and, as I understand it, is still resident there. Unknown to him, the
deceased purported to make a will on 5 April 1961, whereby she appointed the
respondents as executors. The two respondents are the managing clerk to the
[1964] 1 All ER 596 at 598

firm of solicitors who drew the will and the nurse who looked after the deceased, who was
an elderly lady. Both of them take a benefit under the will, the latter to a considerable
extent. The appellant, on the other hand, gets nothing whatsoever out of the will.

On 26 January 1962, the respondents obtained a grant of probate of the will in common
form. On 15 August 1962, the appellant caused a citation to be issued against the
respondents (as well as a number of other beneficiaries under the will) which recited that
the respondents had obtained probate in common form of the alleged will, that the
deceased died intestate, and that the probate ought to be called in, revoked, and declared
null and void in law. The citation went on to command the respondents to "bring into and
leave in the Principal Probate Registry ... the aforesaid probate". It also required them to
cause an appearance to be entered in the Principal Probate Registry and to "propound the
said paper writing in solemn form of law" should they think it in their interests so to do, or
to

"show cause why letters of administration of all the estate which by law
devolves to and vests in the personal representative of the said deceased
should not be granted to"

the appellant; and it gave notice that, in default of their doing so, the court would proceed
to grant letters of administration of the estate to the appellant notwithstanding their
absence.

The respondents and a number of other beneficiaries appeared to the citation, but it seems
that the process of serving the large number of beneficiaries took some months, and the
last of them only entered an appearance on 10 March 1963. Following this, the
respondents, as executors, took no step towards propounding the will in solemn form.
Equally, the appellant took no step to start an action for revocation. In these
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circumstances, on 30 May 1963, the respondents issued a summons before the registrar,
asking for directions as to the commencement of proceedings. On that summons the
registrar made an order to the effect that, unless the appellant issued a writ in the matter
within fifty-six days, the proceedings arising from the citation should be discontinued, that
the caveat entered should cease to have effect and that the grant of probate of 26 January
1962, should be handed out to the executors.

The appellant appealed against the decision of the registrar to the judge, Payne J. He also
served notice of motion dated 17 July 1963, for an order, pursuant to r 47 of the Non-
Contentious Probate Rules, for a grant of administration to himself. Rule 47 provides, by
sub-r (2):
"If the time limited for appearance has expired and no person cited has entered
an appearance, or if no person who has appeared proceeds with reasonable
diligence to propound the will, the citor may apply on motion for an order for a
grant as if the will were invalid."

The summons and the motion were both heard by Payne J on 24 July 1963, when he
dismissed the appeal from the registrar and also dismissed the appellant's motion. He did,
however, grant leave to appeal from his decision.

The appellant's case is that the judge came to a wrong conclusion, and that it is for the
respondents as executors to start an action to establish the validity of the will. He contends
that, in the absence of any move on the part of the respondents to do so, he is entitled to
proceed by way of motion under the Non-Contentious Probate Rules and to obtain a grant
of administration himself. He asserts that he is prejudiced by the order made by the judge
requiring him to institute proceedings as plaintiff because, first, he may be required to
furnish security for costs, and, secondly, he will have to accept the burden of proving
affirmatively the invalidity of the will, instead of leaving it to the respondents to establish
the will and relying by way of defence on the well-established doctrine of Barry v Butlin.
[1964] 1 All ER 596 at 599

The reasons for the judge's decision are, I think, summarised in a single sentence of the
short judgment which he delivered. He said:
"It seems to me that the plaintiff's advisers have consistently ignored, or
overlooked, the fact that there has been in this case a probate of this will in
common form, and the procedure quite clearly set out in my view both in
MORTIMER and in TRISTRAM AND COOTE in these circumstances is that, a
caveat and citation having been ordered, the next stage is for the plaintiff who
disputes the will to issue a writ of summons asking for a revocation of the
probate in common form and require proof of that will in solemn form."
 Page 6

We have been referred to several statements of the practice contained in the well-known
textbook by Mr Mortimer, the Law And Practice of the Probate Division of the High Court of
Justice. That textbook is of such standing that we can, I think, at least regard it as of high
persuasive authority. The author says this (2nd Edn, at p 513):
"When probate in common form has issued to an executor, and a person
whose interest is adversely affected thereby desires to compel proof of the will
in solemn form, or on any ground to have such probate called in and revoked,
the executor is cited to bring the probate into the principal registry in order that
the citor may proceed in due course of law for the revocation of the same."

Later, on the same page, he goes on:

"The party cited, if an executor or administrator of the will, must, if he wishes to
resist revocation, either issue a writ against the citor propounding the will, or
enter an appearance to the writ which is usually issued by the party citing
concurrently with the citation. An administrator on intestacy must similarly enter
an appearance to the writ, issued with the citation, if he wishes to resist
revocation. If, after the grant has been brought in, the citor takes no step to
have it set aside, the person cited may issue a summons for the discontinuance
of proceedings and for the redelivery out to him of the grant."

Then, in another passage (at p 550), under the heading "Actions for the revocation of
grants", the author says this:
"The preliminary steps to be taken by a party who desires to obtain revocation
of probate, or to compel an executor who has proved the will in common form,
to propound it for proof in solemn form, are the entry by him of a caveat,
followed by the extraction of a citation against the executor to bring the grant
into the registry, and the issue of a writ making the executor defendant and
alleging the invalidity of the will. The executor thereupon lodges the grant in the
registry, enters an appearance to the writ, and an action commences."

It certainly seems to me that the directions given by the registrar in this case, and the order
made by the judge, conform with the practice so stated in Mr Mortimer's book. The judge's
decision, however, is attacked on the ground that it is said to violate a long established
principle enshrined in a number of old cases to which we have been referred. It has been
contended that, where a grant of probate in common form is impeached, it is for those
desiring to establish the will to propound it in solemn form, and accordingly that the
appellant was entitled to do what he did, viz, issue this citation requiring them to do so. In
support of that proposition we were referred to another passage in Mr Mortimer's book (on
p 238), under the heading "The various forms of probate". In that passage the author
distinguishes between probate in common form and probate in solemn form, and says this:
 Page 7

"The difference in effect between these two forms of probate is, that the
executor of a will proved in common form may at any time thereafter be

[1964] 1 All ER 596 at 600

called upon, by those whose interests are adversely affected, to prove the will
in solemn form, and if he then shall fail to establish its validity the probate so
granted is revoked."

It is to be observed that the note to this passage refers to several of the old cases relied on
by the appellant here, and notably, I think, to Merryweather v Turner, which was relied on
by the appellant and in which a number of the older authorities were reviewed. Counsel for
the appellant also referred us to a number of passages in Tristram and Coote's Probate
Practice, notably passages on pp 582, 584, 585 and 588--in parenthesis, I would add that
he might also have referred us to a similar passage on p 577--as authority for the
proposition that, in circumstances such as those in the present case, the executors can be
compelled to prove the will in solemn form notwithstanding the previous grant of probate in
common form.

It seems to me that the argument for the appellant rests on a confusion between the right
of a person in the position of this appellant to have the will proved in solemn form and the
procedure to be adopted to bring this about. I do not think that his right to demand proof in
solemn form can be doubted. But, having read and re-read the passages cited from
Tristram and Coote, and having referred again to the old cases that have been cited to us,
I can see nothing in them to contradict the statement contained in the passages I have
read from Mr Mortimer's book as to the correct procedure to be adopted. Those older
cases were not concerned with procedure, but with the question whether, in the particular
circumstances of the individual cases, the right to have a will proved in solemn form had
been lost for one reason or another, such as delay or laches.

Furthermore, it seems to me that the procedure as it is stated by Mr Mortimer in his book is

confirmed by the forms of citation prescribed by the rules. The rules provide forms for
various types of citation, and they are collected in forms 69 to 82. The particular form
appropriate for bringing in a grant of probate where an intestacy is alleged is form 77, and
it is, I think, illuminating to read the words of the prescribed form. They are as follows:
"Whereas it is alleged in the said affidavit that the said deceased died intestate,
and that the said probate ought to be called in, revoked, and declared null and
void in law: Now this is to command you the said A.B. that within eight days
after service hereof on you, inclusive of the day of such service, you do bring
into and leave in the Principal Probate Registry of our said court at Somerset
House, Strand, London, the aforesaid probate in order that the said C.D. may
proceed in due course of law for the revocation of the same."
 Page 8

That contemplates in the clearest possible way that it is for the citor to institute
proceedings. It seems to me that the difficulty which has arisen in this case is a difficulty
largely of the appellant's own making, because the form of citation which he caused to be
issued, and to which I have already referred, attempts to combine with form 77 a good deal
of form 69, which is the form of citation to accept or refuse probate, and which is
appropriate to a case where there has been no probate in common form. The more one
looks at the result the more it is apparent that the two forms simply do not mix. In the case
contemplated by form 69, where there has been no grant of probate in common form, it is,
of course, proper to require that the executors should show cause why administration
should not be granted to the citor. But that is very different from the situation which has
arisen in the present case.

In these circumstances, I am satisfied that the learned registrar made a perfectly proper
order when he required the appellant to issue a writ within fifty-six days, and I am equally
satisfied that the judge came to a right conclusion when he dismissed the appeal from the
decision of the registrar. As it seems to me, the order made by the registrar did not in any
way violate any right that the
[1964] 1 All ER 596 at 601

appellant may have. It merely prescribed the procedure to be adopted, and prescribed it in
accordance with what I regard as the recognised practice. That being so, I think it follows
almost inevitably that the judge was equally right to dismiss the motion. So the second part
of the appeal before us must also be dismissed. I think that it would be absurd to allow the
appellant to continue proceedings for obtaining a grant on motion at a time when he is
required by the order of the court, if he wishes to proceed, to issue a writ. Moreover, it
seems to me that the procedure by way of motion under r 47 of the Non-Contentious
Probate Rules is quite inappropriate to the situation in the present case. As I read that rule,
it applies only in a case where the will has never been propounded at all.

In the view which I hold, the situation which has arisen in the present case is not one of
non-contentious business at all. Here the parties are very much in dispute. I do not think it
is necessary to specify at exactly what point the proceedings became contentious
proceedings, but that they did so become is, I think, beyond doubt. Contentious
proceedings are defined by r 3 of the Contentious Probate Business Rules as
"All proceedings in the Court of Probate or in the registries thereof in respect of
business not included in the Court of Probate Act, 1857, under the expression
'Common form business', except the warning of caveats, shall be deemed to be
contentious business."

"Non-contentious or common form probate business" is defined by s 175 of the Supreme

Court of Judicature (Consolidation) Act, 1925, repeating the definition contained in s 2 of
the Court of Probate Act, 1857, as follows:
 Page 9

"'Non-contentious or common form probate business' means the business of

obtaining probate and administration where there is no contention as to the
right thereto, including the passing of probates and administrations through the
High Court in contentious cases where the contest has been terminated, and all
business of a non-contentious nature in matters of testacy and intestacy not
being proceedings in any action, and also the business of lodging caveats
against the grant of probate or administration."

Having regard to that, it seems to me quite impossible to say that the situation we are
dealing with here is one to which the Non-Contentious Probate Rules apply, and,
therefore, proceedings under r 47(2) of the Non-Contentious Probate Rules, 1945, appear
to me to be wholly inappropriate. In those circumstances, I am of the opinion that this
appeal in respect of both decisions of the judge must be dismissed. I would only add this. I
desire to make it clear that I am expressing no view at the present stage as to what the
burden of proof may be which the appellant will have to accept in the event of his electing
to institute an action for revocation. Nothing that I have said is to be regarded as
prejudicing in any way his right to contend, if so advised, that the burden remains on those
propounding the will, viz, the respondents, to justify the righteousness of the transaction.

DANCKWERTS LJ.

I agree. My lord has dealt so fully with the points which are involved that it is only
necessary for me to add a few words. The contention on which counsel for the appellant
based his arguments principally was that a person interested in the estate has a right to
compel an executor who proved in common form to prove the will in solemn form. So be it.
The question is, as so clearly stated by my lord, what is the proper method of achieving
that result? Counsel relied on r 47(2) of the Non-Contentious Probate Rules, 1954. Now
that rule seems to me very inappropriate to an application of the kind contemplated in the
present case. The citation has been issued, the executors have entered an appearance,
and they have in fact propounded the will, though they did it, of course, in common form.
Consequently, it seems to me that the terms of that rule do not permit an order to be made
on motion. But there is a further, and, it seems to me, insuperable difficulty in the way of
counsel for the
[1964] 1 All ER 596 at 602

appellant, viz, the definition of what is non-contentious business, and the Non-Contentious
Probate Rules, 1954, can apply only to non-contentious business. As was stated by my
lord, there is a definition in s 175 of the Supreme Court of Judicature (Consolidation) Act,
1925, which defines non-contentious or common form probate business as "The business
of obtaining probate and administration where there is no contention as to the right
thereto". This obviously is a case in which there is contention as to the "right thereto".
That, as pointed out by my lord, reproduces the provisions of s 2 of the Court of Probate
 Page 10

Act, 1857. The same point is underlined by r 3 of the rules relating to contentious business,
which is in these terms:

"All proceedings in the Court of Probate or in the registries thereof in respect of

business not included in the Court of Probate Act, 1857, under the expression
'Common form business', except the warning of caveats, shall be deemed to be
contentious business."

Consequently, this case is a case of contentious business, and the Non-Contentious

Probate Rules, 1954, can have no application.

It seems to me quite clear that the application was not properly made, that the decision of
the judge was perfectly correct and that this is a case in which there is contentious
business. The proper procedure, as is mentioned in Mr Mortimer's book, the Law and
Practice of the Probate Division of the High Court of Justice, requires a person who has
cited the executors to start proceedings for revocation of the grant in common form,
unless, for their own convenience it may be, the executors themselves decide to propound
the will for proof in solemn form. That, I think, is really quite clear, and I am satisfied that
the appeal must be dismissed.

DIPLOCK LJ.

I agree. Where probate has been already granted in common form and the next of kin
requires the executors to prove the will in solemn form, in my view, the proceedings are
not non-contentious business as defined in s 175 of the Supreme Court of Judicature
(Consolidation) Act, 1925, but contentious business, and the rules and practice of the court
relating to contentious business in probate matters apply. In my view, r 47 of the Non-
Contentious Probate Rules, 1954, on which the appellant relies is of no application, for he
is seeking the revocation of an existing grant of probate by the court. This can only be
done, under both the new rules and those in force at the relevant time last year, by an
action commenced by writ of summons, although a citation to bring in the grant and a
caveat must be issued before or simultaneously with the issue of the writ. In my view, the
proper procedure at the relevant time was accurately summarised in the Annual Practice,
1963, pp 8 to 10, as follows:

"Revocation actions. These arise after a grant has been made in common form
on such ground as the alleged invalidity of the will, or that the person who has
obtained the grant is not entitled to it ... A citation to bring in the grant must
issue before, or simultaneously with, the writ, and a caveat must be entered ...
The citation ... must be brought into the registry in draft for settlement."
 Page 11

This is confirmed by Mortimer's book on the Law and Practice of the Probate Division of
the High Court of Justice (2nd Edn) at pp 513, 514, which makes it clear that, although the
executors have the right, if they so desire, and the citor has not already done so,
themselves to start proceedings to prove the will in common form, they are under no
obligation to do so, and, if the citor takes no steps himself to issue a writ, the executors are
entitled to apply to the court by summons for discontinuance of the proceedings and have
re-delivery of the original grant to them.

I think that the judge was right, and would dismiss this appeal. In so doing, we are deciding
merely that question of procedure, and I express no view whether, if the citor does issue a
writ, it will be sufficient for him to deny knowledge and
[1964] 1 All ER 596 at 603

approval and/or due execution of the will, and to put the executors to proof in solemn form,
or whether the onus will lie on the citor to set up a positive case of invalidity. Although this
question was adumbrated by counsel on behalf of the executors, it does not seem to me to
be one which it is proper, or indeed relevant. to decide on an interlocutory appeal.

There is only one other matter to which I would desire to refer. I must confess that I started
off the hearing of this appeal with a prejudice in favour of allowing it, because the papers
provided by the appellant's solicitors were prepared in such an attractive and admirable
form. For the reasons given by my lords, I have been obliged to overcome that prejudice,
but I would like to pay my tribute to the appellant's solicitors for the model way in which this
case has been prepared for this court.

Appeal dismissed. Leave to appeal to the House of Lords refused.

Solicitors: A L Bryden & Williams (for the appellant); Batchelor, Fry, Coulson & Burder (for
the respondents).

F A Amies Esq Barrister.

[1964] 1 All ER 596 at 604