The vast majority of grants of representation, whether by way of grant of probate, letters of administration or whether letters of administration with will annexed are issued forth from the Probate Office. Technically, they issue in the name of the High Court, where a Court order or judgment is not required. See the separate section on contentious probate, which may arise when the validity of a will is contested and is ultimately determined and adjudicated by the Court.
Grants, most grants comprise either a grant of probate in respect of will or grant of administration. Grant of administration with will annexed is a grant in respect of the will similar to a grant of probate in vouching for its validity but given to somebody other than the named executor.
Second and subsequent grants may be issued where for example, the representative dies without fully administering the estate. Limited grants may be issued for particular purposes, e.g. for litigation or to deal with certain assets without dealing with the estate generally. There is also provision for special grants.
The prescribed forms and application, oaths for probate applications are set out in the Superior Court Rules. The application is made to the Probate Officer through the Probate Office. Applications are lodged in a paper. If the papers show that the applicant qualifies for the issue of a grant, a grant of probate formally issues from the Probate Office in the name of the High Court, grant of representation above.
In strict terms, a grant of representation relates to assets within the State only. The High Court has jurisdiction to make a grant of representation, notwithstanding that there were no assets within the estate. This may be required for technical legal reasons so that personal representatives may exercise certain powers.
Inland Revenue Affidavit
The process of probate has long been linked with inheritance tax and formerly death duty. The proposed personal representative must complete a so-called Inland Revenue affidavit. This essentially seeks essential information in respect of the deceased, prospective beneficiary’s value of the estate prospective benefit. It also seeks information on non-probate transfers i.e. transfers of assets which pass outside the estate. See the separate section on assets which pass on death outside of the estate.
The Inland Revenue affidavit Act is a balance sheet of the deceased, listing assets and liabilities as at the date of death. Valuations may be required in relation to complex assets such as unquoted shares. The prospective applicant for probate must swear the affidavit.
The affidavit distinguishes between assets and debts within the estate and assets and debts outside the estate. The grant of representation may only be issued in respect of assets within the estate. If assets are situated outside the estate, a separate grant of representation may be required in the foreign jurisdiction.
Formerly, the Inland Revenue affidavit was returned in duplicate to the Revenue Commissioners. A certificate from the High Court is required before the second stage of application could be made directly to the Probate Office.
This procedure has now changed and the Inland Revenue affidavit to is filed with the Probate Office. The Probate Office, in turn, returns it to the Revenue Commissioners, Inland Capital Taxes Branch.
The executor named in the will has the primary right to prove the will. He need not necessarily act. If however, he intermeddles with the estate, he may not be able to renounce or reserve his rights.
A person may not be expressly named as executor but may be an executor in accordance with the tenor of the will. This means that the person is executor in accordance, in substance under the terms and conditions of the will without being so formally named.
An executor may refuse to accept the grant of the appointment and may renounce. He may reserve his right. This may typically be done if there are two executors. A reservation may not be made by a single executor.
The acts of a sole executor, one of two or more named in the will with the others reserving or not taking probate are nonetheless valid as regards third-party. A person may renounce his rights to take probate. In this case, the persons next entitled become entitled to take the grant.
Where the executors are dead, have renounced or are unwilling to act following the procedure below, other parties, primarily the principle beneficiaries entitled may apply.
Oath of Executor I
The application requires completion of the filing of the original will. An oath by the executor confirming that he believes the same to the original will, that the person did not marry or revoke it to his knowledge after making it, setting out the value of the estate, an undertaking to comply with the terms of the will must be filed.
The original will is exhibited. Probate Office requirements also require certain copies of the documents, death certificate, payment of fees. In other cases, further documents which either arise from the contents of a will or from its physical condition or wording may be required.
the original will cannot be produced, it may be necessary to obtain a court order to prove a copy. It is necessary to show that the account for the loss of the original will and show in particular that it has not been revoked. Where a will cannot be found, it is necessary to rebut the presumption that it may have been revoked by destruction.
Oath of Executor II
The oath requires the following:
- details of the deceased’s name and address,
- date and place of death,
- relationship to executor,
- particulars of the entitlement of the executor to the grant,
- the gross value of the estate,
- filing clause,
- particulars of solicitors.
The title to the will be simple in the majority of cases. However, complex the cases may apply and the entitlement of the applicant must be shown in accordance with the relevant rules on the face of the will.
The Inland Revenue affidavit must be filed in duplicate in accordance with. See above.
A will should be a standalone document. However, it is possible in some cases for other terms and conditions to be incorporated. The document must exist at the time, clearly identified and referred to in the will as existing. The relevant document must be submitted to the Probate Office at the same time as the will.
Where the original will cannot be found, the fact and execution and non-revocation of the will must be shown. Where the will was in the possession of the testator cannot be found, it is presumed that they have destroyed and revoked it. It may, however, be possible to show that it has been lost.
Apparent Defects I
In certain cases, documents will be required to explain apparent discrepancies with the will. An affidavit of due execution may be required where there is something on the face of the will to suggest, possible invalidity.
Where there is not a proper witnessing clause confirming the presence of two witnesses at the same time together with the deceased testator, an affidavit will be required. Where there is anything suggesting lack of mental capacity such as death certificate disclosing certain grounds of death linked to dementia etc. will be made in certain institutions, an affidavit of capacity may be required.
The affidavit is made by the requisite parties and must to give sufficient prima facie proof that the invalidating factor is not present.
Where the testator’s will does not appear in the correct place, it is necessary to give evidence regarding the circumstances of execution.
Where the deceased has signed with a mark because of illiteracy or physical infirmity, evidence must be given that the will was duly read over and an explanation for the mark in place of signature must be given.
Where the will is weak, indecipherable or poorly formed, evidence may be given by way of explanation. This does not touch on mental capacity.
Where the will is made by a third person, signed by a third party on behalf of the deceased, it must be proved to be made by the direction or in the presence of the testator.
Apparent Defects II
Where the will is written on several sheets of paper that are not bound or stapled, it may be necessary to show that they were a single document, show by affidavit that they were a single document. Where there is any evidence that the will has been opened or re-stapled, an affidavit applies in condition explaining and vouching that it has not been renounced will be likely to be required.
Where there were amendments, alterations and erasures in the will, it is necessary to show when they were made and that they evidence no evidence to revoke the will. Affidavit in witness will be commonly required.
Where the attestation clause is incomplete, and it is not apparent on the face of the will that the testators find that they end in the presence of two witnesses an affidavit is likely to be required.
Any evidence of tearing, adhesive, pinholes etc. is likely to require explanation by way of affidavit applied and conditions.
The affidavits will generally be made by a witness but may also be made by a person, for example, who can explain a tear etc. in the will. It may, for example, have become torn or damaged after the will was made but in the circumstances which do not point to an intention to revoke.
An affidavit of testamentary capacity will be required where the will, the deceased died in a psychiatric hospital, death certificate points to any mental infirmity, the testator was a ward of court. An affidavit of testamentary capacity will be generally sworn by the relevant general medical doctor at the relevant time. If there is no such doctor, the doctor who attended the deceased at a later time may suffice.
If there is any issue regarding the validity of the will, the matter may be referred by the Probate Officer to Court.
Where the will contains a charitable bequest, a form is required. This is furnished to the relevant charities regulator.
Grant of Probate
A grant of probate is a formal sealed document issued in the name of the High Court. It has a copy of the will attached. The original wills are filed and retained by the Probate Office. They are then public documents and are open to inspection thereafter.
The executor is obliged by law to implement the terms of the will in accordance with its terms. See separately the sections in relation to the administration of estates and the relevant obligations that are applicable. In essence, the executor must gather in the assets realised and pass them to the persons entitled.