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November 22, 2021: A lawsuit has been filed against the attorney general and the Queen's private lawyers over a decision to exclude media from a court hearing about the Duke of Edinburgh's will.

The Guardian is asking for permission to argue that the high court's refusal to adequately assess whether the press should be allowed to attend the hearing or make representations violates the concept of open justice to the point where the case should be reheard.

After a secret hearing that media organisations were not warned about and were forbidden from attending, the president of the high court's family division, Sir Andrew McFarlane, decided in September that Prince Philip's will should be kept hidden from the public for 90 years.

Only 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, were allowed to attend the court. Both parties were successful in convincing the judge to keep the media out of the hearing.

"We're asking for permission to argue that the high court's actions in this case amount to a failure of open justice, and that the case should be reheard."

According to British law, if a person writes a will before they die, it becomes a public document after it is admitted to probate, and anybody can get a copy for a charge from the Probate Registry.

When a person dies in the United Kingdom, whatever will they leave behind is automatically made public. This is done to guarantee that the will is followed, to bring it to the notice of possible beneficiaries, and to avoid fraud against the estate of a deceased individual.

This restriction does not apply to the Windsor family. Although the monarch's will is kept secret from the public by law, there is no rule requiring other members of the royal family's wills to be kept hidden. A legal definition of who is and is not a member of the royal family has yet to be defined. However, almost a century ago, the royal family began filing court petitions to have their wills sealed from public view.

McFarlane identified the earliest will to be kept secret as that of Prince Francis of Teck, Queen Mary's younger brother, who died in 1910, in the ruling summarising the closed court matter relating to Prince Philip's will.

To keep a sex scandal under wraps, Teck's will was kept hidden. Mary convinced a judge to close the case since it was thought to prove that he had left precious family jewels to a mistress.

The tradition of keeping the Windsor family's wills hidden from the public was last examined in 2007, when an accountant, Robert Brown, requested access to the Queen Mother's and Princess Margaret's wills on the grounds that he felt they would prove he was Margaret's illegitimate child.

His application had been turned down. He did, however, succeed in arguing that the family court had neglected to consider elements of public interest relating to the Windsor family's practise of keeping their wills hidden from public inspection.

Brown's lawsuit also exposed a covert arrangement between the attorney general, the former president of the family court, the royal household, and Farrer and Co. Later, only a portion of the document was made public.

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