Court Grants

Contentious Probate Matters

In the vast majority of cases a grant to probate and letters of administration issue from the probate office in a non-contentious manner.  In the vast majority of cases, the will be validly executed and clearly identifies the executor.  In intestate cases, the persons entitled to apply are usually clearly established and have a motive to proceed.

However, a range of issues may arise which require the intervention of the court.  Some of these are contentious in the sense of different parties are claiming contrary positions.  For example, the validity of a will might be challenged.

The probate office may refuse to determine a matter that is not sufficiently clear, in which event it will be necessary to apply to the High Court for directions and adjudication.  This may occur where there is no element of contention, but there is a legal doubt.

There is a special probate list which deals with issues arising in the course of an application for grant of probate of a non-contentious nature.  Where a party is potentially prejudiced by the application, he should be given notice of the application to the court.

Generally, the application is made by way of written application and affidavit.  Verbal evidence is not generally be required. The proceeding is initiated by way of a motion which is brought directly before the court within a very short time.  Proceedings are summary in nature and in many cases one-sided or ex parte.

The motion must set out the details of the relevant parties, any proceedings already initiated and the facts which found an entitlement which is claimed

Court Power to Issue Grant

Section 27 of the Succession Act allows the High Court to grant letters of administration or grants of probate out of the ordinary circumstances of entitlement where special circumstances exist.  The grant may be limited to particular purposes.  The court may cancel or vary the grant.  In each such case, the grant is a grant of administration or a grant of administration with annexed, not a grant of probate.

The High Court and Circuit Court have jurisdiction to deal with contentious matters in relation to succession.  There are limitations in the case of property of relatively high value.

Personal representatives may sue and be sued on behalf of the estate.  They need not join in party’s beneficiary entitled to the asset.  The court may order such persons to be joined where it believes appropriate.

Court Grants I

An example of where such an application may be necessary is where a creditor wishes to enforce, seek a judgment against the estate of a deceased person.  The estate may, for example, be insolvent in which event there is no motive for the person entitled to take administration or probate to proceed.  In this case, a limited grant to a creditor may be appropriate.

In many instances, persons have equal entitlement to apply for a grant of representation.  For example, the children of a person who has died in intestacy without a spouse are equally entitled, so the first to apply will obtain a grant. Where more than one party seeks probate, one may issue a motion to the court setting out where it is desirable that he should represent the estate.  The other party must be notified and he may respond accordingly.

Court Grants II

There are a number of special types of grants which have broad purposes as set out below.

There is a grant exists to protect assets to preserve them pending a grant of administration.  The does not allow distribution of the assets.

Proceedings ad litem allows the appointment of a person to the claimant or plaintiff to appoint a  personal representative to represent the esstate where legal proceedings are being commenced.

Where there are proceedings challenging the validity of a will or revoking a grant, administration pending the outcome of the litigation may be sought, effectively to freeze the distribution of the state.  The grant lasts only as long as the proceedings last and terminate with them.

Court Grants III

Another form of application is where a will has been lost.  In this case, it may be possible to have a copy admitted to probate.  It will be necessary to persuade the court that the will was properly executed existed and most importantly was not revoked.

In this case, it will be necessary to obtain the consent or to notify all persons who would be affected by the will in the sense that they may lose an entitlement, for example on an intestacy that might otherwise apply.

Where a person has disappeared and cannot be found it may be possible to obtain a grant of probate by way of an application without proof of death.  There is a general presumption that if a person has disappeared and has not been heard from by persons who would expect to hear from him within seven years that he is presumed dead.  In effect, this is an application for a grant of probate based on a presumption that the person is dead.

Validity Issues

Where there is a technical question on the validity of execution of a will on which the probate office is not happy to adjudicate, an application may be made for proof that the will was, in fact, is included in accordance the Succession Act requirements.

Although there is a presumption that a will has been duly executed, the circumstances surrounding may cast doubt.  In this case, the matter may be required to be proved for example by witnesses.

Wills may be challenged on the basis that they are invalid.  Invalidity may arise from failure to comply with the prescribed formalities, undue influence, lack of mental capacity, lack of knowledge or approval of the will or undue influence upon the deceased.  See generally other chapters in relation to the grounds on which legal instruments and in particular wills may be invalidated.

Probate Action

A probate action is commenced by summons which seeks that probate be granted annulled or an equivalent relief.  Probate action may involve seeking to prove the will in so-called solemn form of law by court order rather than under the auspices of the probate office.

A probate action may be taken by any number of parties.  He may be executor or purport to the executor, beneficiary or person entitled under intestacy.

In the probate action, an application must be made to the Master for directions prior to the trial.  Ancillary orders in respect of the claim, discovery, inspection of documents, examination of witnesses etc.  may be ordered.

A person may take a probate action only on the basis that he requires the will to be solemnly proved in court rather than in common form to the probate office.  He is not liable to pay the other costs unless the court takes the view that this was no reasonable ground for him for opposing the will.

Procedure

Most legal actions in contentious probate cases must be commenced by plenary summons.  This is the default procedure which is discussed in details in the section on litigation.

The parties are obliged within eight days of an appearance being entered to file affidavits setting out any written documents or directions they each hold from the testator or of which he has any knowledge, information or belief.

Every such document in the custody of the parties is to be deposited in the court office.  The other party may not inspect documents until he himself has filed his affidavit of scripts. Where the defendant has appeared and filed his affidavit of scripts, a statement of claim must be served and filed.

The case must be particularized in the statement of claim.  Certain claims commonly made in probate actions are particularly sensitive such as claims based on undue influence and duress and the facts alleged to constitute them should be particularized.  Where there is a default in appearance or defines, an application may be sought for the relevant relief sought.

Where the defendant has not appeared, the proceedings may continue as if they had appeared.  The claimant may be allowed the leave of court to discontinue proceedings and seek a grant of representation in the normal fashion, proving the will to the court offices.