Michael Johnson v HM Attorney-General: An unprecedented ruling in the world of probate

A groundbreaking judgment was recently handed down in Michael Johnson v HM Attorney-General [2025] EWHC 1943 (Ch) by Sir Julian Flaux, Chancellor of the High Court. Sir Julian granted an application to seal the will of a private individual, marking this as the first time this has taken place outside the royal family. 

Background

Frank Cowley (formerly Freddie Scappaticci) died in March 2023. Cowley was suspected of being a senior figure in the Provisional IRA and a member of its internal disciplinary unit. In 2003, media reports alleged that he was a British Army double agent (known as “Stakeknife”) involved in the deaths of IRA informants.

Despite attempts to protect his anonymity, including relocating to the UK and changing his name, his identity was exposed several times and threats to his life continued until his death.

S124 of the Senior Courts Act provides that all original wills “subject to the control of the High Court and to probate rules, be open for investigation” which would have resulted in the deceased’s will being a public document causing  concerns that the individuals named in the will could be at risk, should it become public record and their identities revealed.

The deceased initially appointed his solicitors as his executor, but they renounced Probate. Michael Johnson (pseudonym), was prepared to administer the deceased’s estate, but under the condition that the will be sealed and his identity not revealed, and so he sought an order under Rule 58 of the Non-Contentious Probate Rules 1987 to seal the will and prevent public disclosure of the deceased’s true identity.

The court’s decision

The court applied the factors outlined by Mr Julian Smith in the Prince Philip case (a previous authority on when a will should be sealed) as follows:

1. Publicity should ensure that effect is given to the wishes of the testator
2. The task of notifying and tracing legatees may be facilitated if the will is made public
3. Publication of a will might serve general interest in notifying the deceased’s creditors of the death
4. In circumstances where the testator’s true, final will has been lost or suppressed, others may come forward to prove a document in respect of which probate should be granted, those individuals having been alerted by the publication of the purported will
5. Publication may give notice to those who might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975

The court found that none of these factors favouring publication applied in this case. Therefore, the court found that this was a set of exceptional circumstances that justified sealing the will. The judgment highlighted the following specific factors that were taken into account when making the ruling: 

• The need to protect individuals named in the will from real risk of serious physical harm or death
• The impact on transparency, as the judgement contained redactions
• The original solicitors who were also the named executors had renounced their role. The applicant was willing to take this role on but only if anonymity was preserved

Interestingly, whilst Sir Julian concluded that the ECHR did not need to be relied upon in this case, he asserted that the facts aligned with Articles 2, 3 and 8. These Articles, respectively, protect a person’s right to life; right to privacy and prohibit torture and punishment.

Implications for practitioners

This case represents the first time a will for someone outside of the royal family has been sealed from the public, and starts to set a precedent, or at least clearly outline circumstances in which wills can be sealed for a member of the public. This does, however seem to be an exceptional case, and it will be interesting to see if applications under Rule 58 increase following this judgment.