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Reading the will

 

Of all of the various duties that one might imagine the President of the Family Division to have, being in charge of whether the late Princess Margaret’s will should be unsealed and opened to find out whether an individual is her illegitimate child (said individual having ABSOLUTELY NO evidence) is not one I had in mind.

Yet we learn today that it has happened not once, but twice.

 

Re Benmusa 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/494.html

 

This new judgment is short enough to set out in full

Sir James Munby, President of the Family Division :

 

  • I have before me, as President of the Family Division, an application by Malika Benmusa dated 6 March 2017 and received by the court on 9 March 2017.
  • The application was made on a Form N244. In answer to question 3 on the Form, What order are you asking the court to make and why? the applicant has said “To apply to unseal the will of the late Princess Margaret.” In answer to question 5, How do you want this application dealt with? she has placed a v against the words “without a hearing.” In answer to question 10, What information will you be relying on, in support of your application she has placed a v against the words “the evidence set out in the box below.” That reads as follows (I set out the manuscript exactly):

 

“My name was changed as a child as my date of birth, I belive around the age between 3 to 4 years old. My mother did not consent to this, but later on found out. I belive that both names are in the will. And it is explained. My father was in charge of my mother will, but failed to give me what is rightfully mine. So I belive this has been taken out of his hands and put back to the president of the Family Division (Sir James Munby.)”

Below that the applicant has signed the usual statement of truth.

 

  • The practice in relation to the sealing of royal wills, and the actual events surrounding the sealing of the will of HRH Princess Margaret, Countess of Snowdon, who died on 9 February 2002, were explained by the then President, Sir Mark Potter P, in Brown v HM Queen Elizabeth the Queen Mother and others [2007] EWHC 1607 (Fam), [2007] WTLR 1129, paras 6-10, and, on appeal, by Lord Phillips of Worth Matravers CJ, giving the judgment of the Court of Appeal, in Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others [2008] EWCA Civ 56, [2008] 1 WLR 2327, paras 4-8. The circumstances in which a royal will might be unsealed, and the process by which and the persons by whom such an application might be made, were considered by the Court of Appeal in Brown, paras 35-48.
  • The will of HRH Princess Margaret is contained in a sealed envelope which bears the following inscription:

 

“HRH PRINCESS MARGARET

(ORIGINAL WILL)

SEALED PURSUANT TO THE ORDER DATED 19th JUNE 2002

NOT TO BE OPENED WITHOUT LEAVE OF THE PRESIDENT”

I have personally examined the envelope, but I have not opened it. I have not read the will of HRH Princess Margaret nor do I have any idea as to its contents.

 

  • I have no hesitation in concluding that I should strike out the applicant’s claim. My reasons for doing so are shortly stated. The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor identify in any intelligible way either any link with HRH Princess Margaret or any link with her will. The applicant has not identified the grounds or the source or sources of the various beliefs upon which she relies. In short, her application is hopelessly defective.
  • The application is, accordingly, struck out.

 

 

 

The linked cases are more detailed, and set out the last time that this happened.

 

In that case, Mr Robert Brown alleged that he was the illegitimate son of Princess Margaret and that her will would prove it.  It was perhaps unfortunate that the only material evidence he had in this regard was his birth certificate, showing that the two people who brought him up were registered as his parents. If that proves it, then I myself am now ninth in line to the throne, I fancy.

 

  • In his affidavit of some 26 pages the Plaintiff states at the outset (at paras 1.1 and 1.2) that the purpose of his application is to identify whether the Royal wills make any provision for or concerning an illegitimate child, he having an interest in the matter because he claims that he is the illegitimate child of Princess Margaret.
  • As part of the matters relied on in support of that claim, he produces a Kenyan birth certificate signed by Cynthia Joan Brown (nee Lyall) in which she names herself as his mother and states that he was born in Nairobi in Kenya on 5 January 1955, his father being Douglas Richard Brown, a builder by occupation. The relevant Kenyan Ordinance (No 2 of 1928 dated 9 June 1928), exhibited to the affidavit of the executors’ solicitor, Mr Bridges, states its purpose as being “to Provide for the Notification and Registration of Births and Deaths and Other Matters Incidental Thereto”. It makes clear that the registration of the birth of a child in Kenya was compulsory (section 8(1)) and that the provision of false information or particulars was a criminal offence (section 20).
  • In law a birth certificate is prima facie evidence of all matters required by statute to be entered in the certificate: see re: Stollery [1926] Ch. 284 at 310 and Jackson v Jackson & Pavan [1964] P. 25 at 30. The birth certificate is thus prima facie evidence that the Plaintiff’s mother was Cynthia Brown. Furthermore, it is clear from the rest of his affidavit, that the Plaintiff accepts that Cynthia Brown, now deceased, recognised and brought him up as her own child. Curiously, he makes no reference to Douglas Richard Brown, named as his father in the birth certificate save, in passing, as follows. He states that he does not accept for the purposes of his application that his birth certificate is an accurate record on the grounds that such date is inconsistent with an entry in the ‘Births’ section of the Times of 7 January 1955 which gave his birthday as the 6 (not the 5) of January which, he adds, is also that recorded in the hand of “D R Brown” in his tax return for the year 1955. Nonetheless, in exhibited correspondence with the Treasury Solicitor, he refers to Douglas Brown as ‘the name of the gentleman that ‘raised’ me’; and in a letter addressed to Buckingham Palace in 2002 (see para 33 below) he makes reference to aspects of his upbringing by Douglas Brown. Thus it does appear that the Plaintiff was brought up by Cynthia and Douglas Brown (both now deceased) as their own child.
  • At paragraph 42 of his affidavit the Plaintiff states:

 

“I have not been told that I am the illegitimate child of Princess Margaret, or even that I was adopted. It is a conclusion I have arrived at be [sic] deduction.”

At paragraph 2, he explains that process of deduction as follows:

“[M]y conclusion that I am the illegitimate child of Princess Margaret is based upon a jigsaw of personal recollections, events, circumstantial evidence, conversations, reactions and extensive research.”

 

  • None of the matters subsequently set out at length remotely constitutes evidence supportive of the Plaintiff’s claim.
  • At paragraph 2.3 the Plaintiff asserts in respect of Princess Margaret that “there could have been a hidden pregnancy.” In support, he states that Princess Margaret was reported as ill with a “rattling cough” during the “early days of 1955” and that “photographs suggest a growing waistline compared with the elfin waist of 1954”. He also refers to the record of a Privy Council meeting held on 5 January 1955, ostensibly to discuss measures to be adopted in the face of a threatened rail strike, and states that “Examination of the reports and subsequent events of the rail strike left me unconvinced that the reason for the Council meeting was the strike.”
  • At paragraphs 4.1 to 4.4 of his affidavit he relies on his ‘Personal Outlook’ or ‘Instinct’ as being ‘the key element and driver’ of his claim, citing a sense of not belonging to the family environment in which he was brought up and refers to instances of members of his family in England having appeared reticent in responding to his enquiries about his origins. At paragraph 4.5 he describes the relationship of his ‘mother’ with his siblings as having been closer than with himself

 

 

 

The Court of Appeal (I think very kindly) had this to say about the foundation of his claim.

 

This belief is without any foundation and is irrational. It is, however, held in good faith

 

If you listen closely, you can hear a thousand conspiracy theories fermenting about this sealing of the will.

I think best left sealed up, in case the will establishes that James Delaney has no legitimate claim on Nootka Sound. You don’t want to upset James Delaney…

 

“I have a use for you”

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

11 responses

  1. Does anyone else heat the Mystery Voice from I’m Sorry I Haven’t A Clue?

    Mr Brown thinks he is the Queen’s nephew.

    Mr Brown thinks he is the Queen’s nephew.

  2. I want Ferengi Grand Nagus Zek’s will unsealed

    Based upon a jigsaw of personal recollections, events, circumstantial evidence, conversations, reactions and extensive research I am convinced I am the illegitimate child of the Ferengi Grand Nagus Zek,I am positive my Gold Pressed Latinum has been denied me!

  3. I am that Robert Brown.

    I would point out that as a result of my High Court action and subsequent FOI cases the existence of an utterly secret extrajudicial practice direction agreed in camera between the Monarch, Palace, Attorney General, then President of the Family Division and Farrer & Co., has been disclosed;

    https://panopticonblog.com/2015/07/16/secret-practice-directions-and-royal-wills/

    “MR JUSTICE CHARLES: It is pretty worrying stuff, is it not? They have a challange here
    on Gouriet grounds that the Attorney General is the only person who can advance the
    public interest. On Mr Brown’s contention, indeed what he says this means is that the
    Attorney General had fettered his discretion and would not advance the public interest.
    That is his case and that was not disclosed by the Crown in the context of the Gouriet
    argument. . . .

    MR JUSTICE CHARLES: It is troubling, is it not? We are dealing now with the Freedom of
    Information Act, which is to get information so a member of the public can have
    appropriate information to be able to argue a case, and, if it is arguable from these
    documents, which on the face of it is — well, I will not put it higher than “arguable” —
    the Attorney General has fettered his discretion on a central constitutional issue.

    From UTAC hearing GIA 3190 2011 2015 UKUT 393 AAC

    The judgement contains the practice direction as disclosed save one paragraph.

    http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4592

    Further clearly somebody at the DCA thought I might well be Princess Margaret’s child . . .

    Abstracts from a data protection request to the DCA by Robert Brown.

    “Extract from email dated 28th November 2005 From DCA official to DCA official.”

    “To be aware the Mr Brown (Princess Margaret’s putative illeigitimate (sic) son” is contemplating addign (sic) DCA to the long list of govt depts . . . ”

    and others were working hard at controlling contacts with Government departments;

    “Brown is trying a new (and fairly intelligent) tack in his campaign to get the ICO to listen to him, We certainly don’t want xxxxx to be corresponding direct with Brown . . . I am trying to build up a picture of the request he is placing across govt and tactics for dealing with him”

  4. The quote from the DCA official does not prove that s/he believed your nonsense about your parenthood. The word “putative” means nothing of the sort. Frankly, Mr Brown, you should get out more.

  5. Hi Andrew :),

    A good name :); my middle name as well; and on some occasions used as my first name.

    With great respect the OED definition is “generally considered or reputed to be: the putative father of children,”

    Also see

    https://en.oxforddictionaries.com/definition/putative

    And the word putative is formally used in said context ‘legal’ search proceedings in Florida and elsewhere by USA adoption attorneys

    http://www.adoptionattorneys.org/aaaa/birth-parents/putative-father-registry

    http://www.floridahealth.gov/certificates/certificates/birth/Putative_Father/index.html

    http://www.floridahealth.gov/certificates/certificates/birth/Putative_Father/_documents/DH1963_07_12.pdf

    Did the author know what ‘putative’ meant, I cannot say and did not use the word prove as you appear to suggest; but I suggest a Department of Constitutional Affairs employee is on the balance of probabilities is well educated and qualified.

    • Robert, just as a matter of interest: if you got access to the wills and you were not mentioned, not by name, not as an extra-marital child of the Princess, if there were no mention of any such extra-marital child – if everything was left to the marital descendants of the testatrices – would you then have given up?

  6. Why was the will sealed?? I’m only asking……………………

    • The judgment explains that. To stop the media vulturing all over any beneficiaries. Being more cynical, to stop press (and hence the public) learning exactly how much money the royals have.

      Wills aren’t confessions though. The only way any illegitimate child would be named there is if she left him something. And if she’d done that, he would have had it by now.

      The will is entirely the wrong place to look for this. An obvious starting point would be to DNA test the supposedly ‘fake’ parents who brought up said child.

      I was slightly surprised that everyone’s wills aren’t private, tbh.

  7. Andrew – the wills were only a stepping stone, a piece in a jig saw – there are a variety of reason why I believe there may be come sort of provision – including;
    – Convoluted mentions of trusts in the High Court case,
    – Suggestions the Court could sort the wheat out form the chaff
    – A volunteered disclosure to the Court of Appeal by their Counsel that executors were under no obligation to inform a beneficiary of a bequest.
    – abrogation to exclude illegitimate royals from convention rights

    I never expected the case to open the the wills to become a saga.

    Suesspicious minds – Distribution disclosure of a protective bequest to a beneficiary would depend on terms and interpretation of them – see above.

    DNA – up-bringers deceased sadly a long time ago – meaningful options in that direction are extremely limited. I offered DNA and indeed put a bloody thumb print sealed over with sellotape on the court application to open the wills to provide DNA in case they wanted to test it.

    Forced adoption – The closure of Royal Wills has since the early 1900s been in effect automatic. There is a lot of discussion, including in media and law journals etc on the issue and history. A revised secret procedure to guarantee these wills were closed was secretly produced following the sad passing of Princess Margaret; the AG agreed to not oppose any application to seal so arguably fettering his publicly stated duty to represent the public interest.

    Secret extrajudicial agreements between in name (likely because civil servants have placed Her Gracious Majesty in that position) a Head of State, Judges and the executive, to in effect in camera rewrite the law, arguably raises important constitutional issues; another memorable hearing transcript quote from Justice Charles:

    “MR JUSTICE CHARLES: I think Mr Brown puts it slightly differently to that; what he says
    is that the way he puts the constitutional point or in part puts the constitutional point is
    the Royal Household should have nothing whatsoever in having a private discussion
    with a judge. That is the way he puts it. He says that is a foul; that is simply. He puts
    it high from the relevant cases, but that, he says, is a fundamental constitutional
    principle. If, for example, I decide I want to go and have some practice by which the
    President of the Family Division will operate the relevant probate rules and I went and
    said, “I would like to have a quiet chat with you please so I can set up a practice
    direction or a procedure as to how you should deal with my family’s wills”, I would be
    given short shrift; I would be given a very large boot and I would end up the other side
    of The Strand. He says the Monarch and the Royal Household simply should not be
    doing this. That is his point.”

    Example of media coverage / background:

    e.g. https://www.theguardian.com/uk/2007/mar/27/monarchy.topstories3

    Would I give up – I am believe it or not a Royalist, but have a conviction I am correct, albeit I am fully aware that such beliefs are regarded for good reason as irrational, so I am afraid I am stuck with this quest, and more so having gone public with it.

    If I am correct I suggest it is a tale that deserves to be told.

    It would make a good book, but it could be portrayed I am simply trying to capitalise on my claim, so impact negatively on any proceedings etc.as well as being a time consuming and emotionally painful task, which of necessity involves others who would not welcome such debate. . .

  8. Not really on point, but I’ve always understood the word “putative” when used in a legal text to mean something like “contemplated” “alleged” or “presumed” depending on context.

    So a “putative appeal” is an appeal which is being planned or considered but hasn’t been formally instituted yet, a “putative respondent” is the person who will presumably be responding to the putative appeal and a “putative right” is a right which is asserted but hasn’t yet been proven.

    There is then the “putative father” which has its own particular meaning.

    But the OED seems to be saying I’m completely wrong? Could somebody put me right before I make myself look like a tit again.

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