Queen's lawyers face court challenge over hearing of Prince Philip's will

The Guardian was given permission by Court of Appeal judge Lady Justice King to bring the challenge against the attorney general and the Queen’s private lawyers. The newspaper said media organisations were not told about the private hearing focused on the Duke of Edinburgh’s will, which took place in July, and were consequently prevented from attending it.

Following the July hearing, the president of the family division of the High Court, Sir Andrew McFarlane, ruled in September last year the will of late Prince Philip should remain sealed for 90 years.

In its legal challenge, the newspaper intends to argue the case should be reheard in the High Court on the basis Sir Andrew failed to properly consider whether journalists should have been permitted to attend the original hearing or make representations in favour of being allowed to attend.

Moreover, the Guardian claimed this move was an interference with the principle of open justice.

Upon making a decision in favour of the newspaper, Lady Justice King said: “There is a real prospect of the applicant [the Guardian] succeeding on the ground that the high court erred in law in denying the media an opportunity to make submissions, or at least to attend and hear submissions, as to whether the substantive application to seal the will of His Late Royal Highness, the Prince Philip, Duke of Edinburgh should be heard in private.”

Buckingham Palace did not comment on this decision.

The original hearing was attended only by Prince Philip’s executor, Farrer and Co Trust Corporation, a subsidiary of the Queen’s private solicitors Farrer and Co and acting attorney general Michael Ellis.

Sir Andrew addressed the absence of the media at the July hearing.

He previously 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.”

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Upon ruling on whether the Duke of Edinburgh’s will should be kept secret, Sir Andrew said in his judgement published in September: “I have held that, because of the constitutional position of the Sovereign, it is appropriate to have a special practice in relation to royal wills.

“There is a need to enhance the protection afforded to truly private aspects of the lives of this limited group of individuals in order to maintain the dignity of the Sovereign and close members of her family.”

He also said he had decided to hold the hearing in private because it would be likely to generate “very significant publicity and conjecture” which would “defeat the purpose of the application”.

He also said: “I accepted the submission that, whilst 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 issue, he added, was “commercial”.

The judge himself has not seen Prince Philip’s will nor has been told anything about its consent other than the date of its execution and the identity of the appointed executor.

British law states the wills of members of the public are to be made public after their death.

The publication of these documents is in place to ensure the instructions in the wills are correctly implemented, to prevent fraud and to alert those who may be beneficiaries.

However, since 1910, the wills of more than 30 members of the Royal Family have remained unpublished following legal applications.

These exemptions from the publication were granted by the High Court following private hearings.

As the most senior judge in the family courts, Sir Andrew is the custodian of a safe containing the sealed royal wills.

In November, he published the list of royals whose will have been sealed, after their names had been kept secret for more than a century.

Prince Philip died at Windsor Castle in April.

His passing came just a few weeks before he would have turned 100.

With his death, the Queen lost her husband of more than 70 years and one of her closest advisers.

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