Contentious Grants

Contentious Matters

In the vast majority of cases, the taking out of a grant of probate or letters of administration and the administration of the estate will not be contentious. There will not be different parties who are claiming contrary positions.

However, disputes may arise in relation to the validity of the wills.  They may arise in relation to it the entitlement to take a grant of probate where other parties have a prior entitlement, but do not proceed.

Disputes may arise as to the proper administration or non-administration of an estate.  Various legal mechanisms and proceedings exist to deal with contentious cases.

Courts & Probate Matters

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

The High Court has full jurisdiction and authority to deal to deal with non-contentious and contentious matters.  See the separate section on the unique High Court non-contentious jurisdiction.

Most contentious probate matters must be commenced by plenary summons in the High Court.  This is the default court procedure which is discussed in detail in the section on litigation. A matter commenced by Special Summons may be referred to Plenary Summons procedure.

The Circuit Court has jurisdiction to deal with contentious succession matters. There are three forms of Circuit Court procedure; civil equity bill, testamentary civil bill and succession civil bill. There are limits in the case of property of relatively high value (€3M) to the Circuit Court jurisdiction.

Probate Action

A probate action is one which seeks to challenge or confirm the validity of a will.  A probate action may seek that a grant of probate be granted annulled or an equivalent relief.

A person may take  a probate action only on the basis that he requires the will to be in solemn form by court rather than in common form through  the Probate Office.   This may forestall future questions as to its validity. 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.

A probate action may also involve a challenge to an existing will on the basis that it is 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 Parties

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.

Any person with an interest in the deceased’s assets or estate may be party to a probate action.  A person may be bound by being cited to the proceeding.  A person who is not originally party of the proceedings, may intervene if he can show an interest.

Once proceedings are issued, a caveat must be entered in the probate office to prevent admission to probate of the will.  In the proceedings, both the claimants and respondent must file affidavits setting out any testamentary or equivalent documents, which they hold.  In an action one party may wish to put forward a particular will or another will.

High Court Probate Action

A probate action may be taken by the executor, beneficiary, persons entitled on intestacy, a creditor or other person with a legitimate interest. A probate action is commenced by plenary summons seeking a grant or recall of probate or letters of administration. It may involve

• proving the will in solemn form of law
• will invalid because of deceased’s lack of capacity
• will invalid because not known or approved by the deceased
• will procured by fraud, duress or undue influence

An affidavit of verification is necessary in relation to the matters claimed in the summons. If not already done the plaintiff must lodge a caveat in the Probate Office in the name of the deceased person.

In a plenary summons case, the case must be particularized in the statement of claim.  Claims commonly made in probate actions may be sensitive such as claims based on undue influence and duress, and require to be fully particularized.

HC Proceedings

Where there is a default in appearance or defence an application may be sought for the relevant relief sought and the proceedings may continue.

In a probate action, an application must usually 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.

Where wills are in issue, 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 claimant may be allowed with the leave of court to discontinue proceedings and seek a grant of representation in the normal fashion, proving the will in the Probate Office, where appropriate.

Circuit Court Procedures

A probate action may be taken in the Circuit Court through a so-called testamentary Civil Bill.  Proceedings in relation to succession are by way of a succession civil bill.

There are equivalent  procedures in the Circuit Court. A Testamentary Civil Bill is required for a probate action.   In a probate action commenced under a Testamentary Civil Bill, an affidavit of scripts must be filed in the same way as in a High Court case.  Equivalent procedures to those above apply.

A defendant may oppose for the purpose of requiring proof of the will in solemn form as opposed to through the probate office.

An administration action follows a broadly similar procedure to that in the High Court.

Parties

Personal representatives may sue and be sued on behalf of the estate.  They need not join in parties beneficially entitled to the estate assets.  The court may order such persons to be joined where it believes appropriate.

Proceedings ad litem allows the appointment of a person as the claimant or plaintiff /  personal representative to represent the estate 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 terminates with them.

Time Limits

Actions for a claim to the estate must be commenced within 6 years from the day to when the right to relevant share or interest accrued. The claim is made against the executor or administrator.

No action may be brought against the personal representative to enforce or  distribute the estate within one year from the date of death.  This is the so called executor’s year.

A 12-year period applies for the executor to recover land and real property against third parties who withhold it. See the sections on adverse possession and estates.

Citation

Citation compels the person to accept or refuse administration of the estate either under a will or intestacy. An executor is not obliged to take out a grant of probate.  The person entitled to prove the will or to take out letters of administration need not do so.  There exists procedures to require a person to take out  a grant of probate or lose the right to do so.

A citation may be applied for in the Probate office.  The objective is to compel a person to take out a grant r lose the right to do so. The application is based on an affidavit setting out the relevant facts.  The citation when issued may be served on the person’s concerned if he resides within the state.

The person served may enter an appearance and respond to the citation within a certain period.  If no appearance is entered within the relevant time, then his non-appearance is equivalent to renunciation of the right to obtain probate. The applicant may obtain an order from the Probate Officer to such effect. Alternatively, the  person cited may indicate his intention to apply for probate administration.

Caveat

A Caveat may be filed in the Probate Office as a method of ensuring that a contested will is not admitted to probate until the person lodging the caveat has first been informed.  The purpose is to give the opportunity to the person to challenge the validity of the will. A grant may not issue until the caveat is removed or has expired.

A caveat is lodged in the probate office and is valid for 6 months unless renewed. When the person proceeds to take probate, the person lodging the caveat is warned.

The person so lodging must enter an appearance to the warning within a certain period.  If no appearance is entered, the caveat may be cleared. The caveat may be removed by court where the person lodging it has no legitimate interest in so doing.

Court Appointed Representative

The court has powers to order that the administration of the estate be granted to such person as it thinks fit.  The court may appoint a person other than the person who  would normally be entitled.  An application and order may involve the revocation of the original grant and the substitution of a new administrator.

An application may be made for a creditors grant where the person entitled to take out a grant refuses to do so, in order  to frustrate the collection of a debt due by the deceased.

A grant may be made exists to protect assets to preserve them pending a grant of administration.  The does not allow distribution of the assets.

Proceedings ad litem allows appointment of a person to the claimant or plaintiff to appoint a legal person representative to represent in the state where legal proceedings are sought.

Court Removal of Representative

A beneficiary may seek to replace an executor where sufficient justification can be shown.  An executor will only be removed if he is guilty of serious misconduct.

The executor may have a demonstrable conflict of interest between his personal interests and his duties as legal representative.

Payments and actions taken by the executor prior to his removal, made  in good faith are binding on and for the benefit of third parties who have acted in good faith, who are accordingly protected.

No Proof of Death

Where a person has disappeared and cannot be found it may be possible to obtain a grant of probate by way of 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.