The court revoked a grant of letters of administration with will annexed which had been granted in favour of judgment creditors on the grounds of their non-disclosure.
Lord Wright MR: ‘But the President or probate judge has discretion either to take or to refuse to take the course [of passing over an executor], and when he is acting on an ex parte motion or petition, he is entitled, according to the universal rule applicable to all ex parte applications, but peculiarly applicable to a matter of this gravity, to have from those who ask him to exercise his discretion the very fullest possible information and disclosure of all relevant circumstances. It may be that there was not such full disclosure of all relevant circumstances owing to a perfectly bona fide failure to appreciate its importance, and I am willing to assume that in the present case that was so; I have no reason to say the contrary. But, however well-intentioned the applicants may have been, if they had knowledge or information of relevant circumstances, it was their bounden duty to put that as fully as they could before the President. ‘
Romer LJ: ‘Whenever a party applies ex parte to a court of justice, it is essential that the applicant should state every relevant fact within his knowledge. The importance in the interests of the administration of justice of maintaining that rule in its entirety can hardly be exaggerated. An applicant who succeeds in obtaining an order without strictly observing that rule cannot complain if the order is subsequently discharged and he is ordered to pay the whole of the costs which have been occasioned by his application. ‘
Judges:
Lord Wright MR, Romer LJ
Citations:
(1936) 155 LT 270
Jurisdiction:
England and Wales
Cited by:
Cited – Shepherd v Wheeler ChD 2000
An application was made without notice for the appointment of an alleged creditor under section 116 as administrator of the deceased’s intestate estate.
Held: The court applied the standard principles of an enhanced duty of disclosure in . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Litigation Practice
Updated: 23 March 2022; Ref: scu.241554
