The Probate Officer is a Court Officer who exercises quasi-judicial functions in relation to probate matters. In some more complex cases, orders of the Probate Officer are required.
A grant may be amended where non-fundamental details need to be rectified. An application may be made to the Probate Officer for the amendment based on affidavit.
The Probate Officer may issue a grant in various atypical cases, where a court order is not required. Some common cases are set out below.
Competing Claims by Person With Equal Rights
Where there is conflict in claims for a grant amongst members of a class entitled to administration, the grant shall be made to such of the claimant’s as the Probate Office shall select, having given not less than 21 days notice to the rival claimants or on objection made in writing within the period to such as the Court shall select.
Where there are a number of applicants with the same degree of entitlement then in most cases, the first to apply obtains the grant Where more than one such makes an application, each is notified. An applicant may file an affidavit and request the Probate Officer to issue a notice to the other applicant, to see if the other applicant objects.
Following service of a statutory notice and after 21 days, an application may be made to the Probate Officer to allow the requesting applicant to proceed. If objections are made, the matter may be remitted to the Probate Judge.
An application may be made by the Probate Officer where there is no residue or substantially no residue, to have a grant made a legatee or devisee entitled to a share of the estate without regard to the usual right of the person entitled to the share in the residue to probate.
Where a person dies domiciled outside Ireland, a grant of an administration intestate or with will annexed of the movable estate may be made by the Probate Officer to a person entrusted with the administration of the movable estate by the foreign Court where the deceased died domiciled or if the person entitled to administer the movable estate by the law of the place where the deceased died domiciled.
A grant of administration intestate or with will annexed of the immovable estate may be made by the Probate Officer in accordance with the law which would have been applicable if the deceased died in Ireland.
If a person dies domiciled abroad, an applicant may be made for a grant in respect of Irish estate. The Probate Officer may issue a grant in relation to movable and immovable assets to the person entitled under the law of the domicile and entitled under the law of Ireland. Where the person does not have a title under each, Probate Officer may grant limited representation as appropriate.
If the country of domicile has issued a grant of probate, the Probate Officer may grant letters of administration to the person who has an interest in the administration of the estate in the place of domicile. It may be limited to non-real assets in Ireland.
If no grant is issued in the place of domicile, an affidavit of a lawyer qualified in that jurisdiction may establish who is entitled to administer the estate in accordance with that law.
If the will is not in English or Irish, a translation may be admitted to proof by the Probate Officer.
If a will has no attestation clause or it is insufficient, the Probate Officer may require evidence of witnesses. If they are satisfactory, the Probate Officer may grant probate. He may refuse it if they are not satisfactory.
The Probate Officer may make an order incorporating a document or paper referred to in the will in the grant of probate. It should be based on sufficient affidavit showing that the document was in existence at the relevant time, refer to, identified and incorporated into the will.
A grant may be revoked where a later will is proved Letters of administration may be revoked where a will is later discovered. A later will and earlier grant may be revoked if a later will is discovered. Similarly, a codicil may, which alters the appointment of the executor may require revocation. In application is made to the Probate Officer to revoke the appointment.
Reference to Judge
Where a number of parties with the same degree of entitlement seek letters of administration, the Probate Officer may refer the matter to the probate judge. An application is made on motion, asserting the claim of the applicant to a grant. It should set out why the Court should prefer the applicant over the rival applicants in terms of the entirety of the circumstances.
Where a will is defective on its face and does not show proper execution, it may be necessary to apply to Court where the Probate Officer is not satisfied on evidence offered as to the proper execution of the will. All available evidence may be put before the Court to show proper executed.
Persons with Limited Capacity
Where there is no guardian appointed by Court under the Guardianship of Infants legislation a guardian may be appointed by Order of Court or Probate Officer. It is based on an affidavit.
The jurisdiction is limited to and facilitates a grant of representation/ letters of administrtaion, to the estate for the use and benefit of the minor during his or her minority.
The Probate Officer may where the person entitled is of unsound mind, grant administration for the use and benefit of the third person. This will usually be the Committee. It need not be a committee that is based on affidavit and made to the Probate Officer. Consent of the Wards of Court Office is required.
A grant may be amended or revoked to by the High Court. It may be revoked because it is later shown to be invalid.
General Power of High COurt
The Succession Act permits the High Court to grant an order for administration to such person as it thinks fit. The Court has the discretion to depart from the general rules of entitlement.This may arise where there are difficulties in establishing who is the requisite parties entitled particularly in the case of an older estate where title to land needs to be rectified.
There may be other circumstances which justify a departure from the normal rules. The basis and circumstances must be set out by affidavit to the Court. Relevant parties who have an interest must be notice parties.
An application may be made for a grant for a limited purpose. This may include a grant for the purpose of preserving assets pending issue of a grant of representation to a representative who will administer the same.
A common application is an application or a grant for the purpose of litigation. It may be a grant for the purpose of defending proceedings. The issue comes up in a due manner where the statute of limitations or the civil liability provisions on claims subsisting before death is about to expire.
There may be no person willing to take representation by the very reason of the litigation. In this case, the claimant may seek to have a party nominate a solicitor for the purpose of defending proceedings against the estate.
Certain non-contentious matters are listed before the Probate Judge of the High Court. An application may be required in respect of certain matters where there are difficulties with the will which the Probate Officer determined are insufficiently clear cut.
An application may be required to the Probate Judge where
- the original will, cannot be produced.
- there are rival applications
- where it is necessary to show due execution, where it is not evident on the will;
- to set aside a caveat
- in the cases for a particular purpose such as creditors applications and limited applications
The application is made by way of unilateral application or where there are other relevant parties, on motion.
A relatively common form of application is where the original will cannot be located or has been mislaid. Questions may arise as to whether it has been revoked. The terms of the will must be proved and it must be shown that it was executed, duly executed. It is presumed to be revoked by destruction in circumstances set out in separate sections. This presumption must be rebutted in the circumstances.
There is a concept of dependent relative revocation. This is a principle involved by the Courts where it can be shown that a person revoked a will on the supposition that other circumstances would apply. The Courts may infer a non-intention to revoke where that condition cannot be fulfilled, was not fulfilled or was frustrated.
Secondary evidence of the original will must be furnished. This should ideally be a copy, although a may be proved by other including oral evidence, although may be extremely difficult in practice.
Evidence must be sought that a copy of the will has been shown for evidence must be furnished if a copy of the will has been sought. The relevant solicitors may be required to advertise in the Law SocietyGazette and sometimes in newspapers.
A person whose interest will be displaced by the will should be a notice party to the application so that they can object and protected their interests.
Other requisite proofs of execution, contents, etc. etc. are required. The court may award the costs out of the estate.