Prince Philip’s will: legal battle launched over media exclusion from hearing
Legal action against the attorney general and the Queen’s private lawyers has been initiated over a decision to ban media organisations from a court hearing about the Duke of Edinburgh’s will.
The Guardian is seeking permission to argue that the high court’s failure to properly consider whether the press should be allowed to attend the hearing or make representations constitutes such a serious interference with the principle of open justice that the case should be reheard.
In September the president of the family division of the high court, Sir Andrew McFarlane, ruled that the will of Prince Philip should be hidden from the public for 90 years, after a secret hearing that media organisations were not told about and were barred from attending.
The only parties permitted to attend the court were Philip’s executor, Farrer and Co Trust Corporation, a subsidiary of the Queen’s private solicitors Farrer and Co, and the attorney general, Michael Ellis. Both parties successfully persuaded the judge to exclude the media from the hearing.
McFarlane said he “accepted the argument that only the attorney general can speak, as a matter of public law, to the public interest, and that there was, legally, therefore no role for those who might represent the media at a hearing (public or private) in putting forward any contrary view of the public interest”.
Under British law, when a person dies any will they have left behind is automatically made public. That is done in order to ensure the will is acted upon, to bring it to the attention of potential beneficiaries, and to prevent fraud against a person’s estate.
The Windsor family is exempt from this requirement. Although the monarch’s will is hidden from the public by law, there is no statute passed by parliament requiring the wills of other members of the royal family to be hidden. There is also no established legal definition of who is, and who is not, a member of the royal family. However, about 100 years ago the royal family began making legal applications to have their wills hidden from the public.
In the judgment summarising the closed court case relating to Prince Philip’s will, McFarlane identified the first will to be kept secret as that of Prince Francis of Teck, the younger brother of Queen Mary, who died in 1910.
Teck’s will was kept secret in order to hush up a sex scandal. Mary persuaded a judge to keep it closed as it is understood to have shown that he had bequeathed prized family jewels to a mistress.
McFarlane wrote: “The answer to the question ‘why should there be an exception for senior members of the royal family?’ is, in my view, clear: it is necessary to enhance the protection afforded to the private lives of this unique group of individuals, in order to protect the dignity and standing of the public role of the sovereign and other close members of her family.
“While there may be public curiosity as to the private arrangements that a member of the royal family may choose to make in their will, there is no true public interest in the public knowing this wholly private information … The media interest in this respect is commercial.”
The practice of sealing the Windsor family’s wills from the public was last considered in 2007 when an accountant, Robert Brown, sought access to the wills of the Queen Mother and Princess Margaret on the basis that he believed they would provide evidence that he was the illegitimate child of Margaret.
His application was rejected. However, he successfully argued that the family court had failed to consider matters of public importance relating to the practice of sealing the Windsor family’s wills away from public scrutiny.
Brown’s case also successfully uncovered the existence of a secret agreement between the attorney general, the former president of the family court, the royal household and Farrer and Co. The document was later partially disclosed.