Don’t Forget the Grant of Probate

The recent case of Price v Flitcraft Ltd [2022] EWHC 3381 has reminded practitioners again of the importance of securing a grant of probate in certain circumstances. The case centred around several issues but the one of most interest would appear to be the grant of probate or the lack of it as the case was here.

Facts

During his lifetime Mr Price’s father had taken photographs in around 2006 to 2007. These were photographs of buildings and cut-away models of sections of floor, roof and wall made using a patented invention. On the father’s death, his will appointed Mr Price’s mother as executrix, who was also beneficiary of the father’s residuary estate. The mother then at a later date, assigned the copyright in the photographs to Mr Price by written agreement. Mr Price then brought an action against the defendant in this matter for breach of copyright in the photographs. The defendant then put Mr Price to proof in respect of his copyright claim. At no point had a grant probate been taken out.

Decision

The court held that as Mr Price had been put to proof, he had to prove title to the copyright. On the death of the father, title to the copyright had vested in the mother as executrix under the father’s will. There was doubt as to whether the mother had then assented to the copyright passing to her as beneficiary but the court held that as the mother had then assigned the copyright to Mr Price, there had been an implied assent in respect of the copyright to herself as beneficiary. However, the court held that Mr Price’s claim for copyright infringement failed. In order to be successful Mr Price had to prove to the court that his mother had title to assign to him. As there was no grant of probate, it was not possible for Mr Price to prove this and, therefore, the claim had to fail for lack of proof of title.

Comments

Although a failure to secure probate will not affect the passing of title in respect of certain types of property, an issue may arise when the beneficiary is required to prove title before the court for some reason. Therefore, before embarking on a course of litigation, it is always worthwhile making sure that probate was granted at the outset and if not, then a grant should be sought before commencing proceedings, if possible.

The contents of this post do not constitute legal advice and are provided for general information purposes only.