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The comments in judgment of Lady Justice King aid an understanding of some of the issues in this case:

39.On 12 May 2006, following negotiations between their respective solicitors, H and W reached an agreement in financial remedy proceedings following their divorce. That agreement was formalised in a consent order. As is noted by the Master of the Rolls, an undertaking was given by W to the court and to H by which she agreed that "in the event that the Petitioner receives hereafter any property and/or monies from her mother by way of inter vivos gifts/and or inheritance, the Petitioner shall retain the first £100,000…. and the balance shall be divided equally between the Petitioner and the Respondent".


40.Both parties had legal advice and knew that this agreement could not in any way bind W's mother as to her future testamentary disposition. The risk, as identified on behalf of W in the offer of settlement letter found in the bundle, was not that her mother might choose to leave her estate elsewhere, but that the money may be needed to fund her care in her old age.


41.It is only rarely that an undertaking in relation to a potential future inheritance such as the one with which this court is concerned is found in a matrimonial finance consent order; its inclusion can only have come about as a consequence of an acceptance on the part of W that a potential future inheritance from her mother was, pursuant to Matrimonial Causes Act 1973 s25(2)(a), a "financial resource which one of the parties to the marriage has or is likely to have in the foreseeable future"


42.The assets in the case were modest and both parties rightly appreciated the desirability of avoiding incurring the costs of a two day trial if that could be achieved. Accordingly the agreement reached provided W with the larger percentage of the liquid assets (namely the sale proceeds of the house) whilst H retained the prospect of a modest lump sum payable in due course by W from her mother's estate, which money would supplement his small pension fund.


43.The settlement of financial remedy cases is encouraged on every level to the extent that Financial Dispute Resolution court appointments (FDR appointments: Family Procedure Rules 2010, r.9.17(1)) were specifically designed to be for the purposes of "discussion and negotiation". Agreement having been reached either at FDR or, as here, immediately before trial, not only are the courts thereafter reluctant to go behind the agreement as to its terms, but each party should be able to rely on the integrity of the other party fairly to implement and honour the terms of their agreement.


44.For understandable reasons the profound difficulties faced by H in enforcing the undertaking given by W if it is the case that the Will of W's mother (which purported to leave exactly £100,000 to W) was not validly executed as a consequence of some action of bad faith on W's part, was not raised in argument. What is clear is that addressing the issue in the context of H having an 'interest' for the purposes of CPR 57.7 and therefore his being able to bring a probate claim, provides a more direct route to determine whether W has acted in a way which is contrary to the essence of her undertaking.


45.It follows therefore that not only do I agree with the Master of the Rolls and Lord Justice McCombe that the H has an interest in the subject matter of this claim for the reasons given, but also that, as the Master of the Rolls says at paragraph 28, "justice in the general sense requires H to be able to bring his probate claim to set aside the will".