Non-Contentious Proceedings
Probate Officer
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.
The Probate Officer may issue a grant in various atypical cases where a court order is not required. Some common cases are set out in other chapters and below.
There are some types of applications which are typically dealt with by the Probate Officer. The Probate Officer may require that the matter be referred to the Probate Judge list for determination. In some cases, following the Probate Judge ruling the matter is referred back to the Probate Officer who gives effect to the determination.
Non-Contentious Court Application
Certain non-contentious matters are listed before the Probate Judge of the High Court. The application is made by way of unilateral application or, where there are other relevant parties, on motion on notice. There is no equivalent Circuit Court jurisdiction.
Section 27 of the Succession Act provides a broad jurisdiction for many such applications. It empowers the High Court to grant letters of administration or grants of probate out of the ordinary order of entitlement where special circumstances exist. The grant may be limited to particular purposes.
The non-contentious list is not suitable where there are disputes regarding distribution, administration and any substantive issues relating to the estate. In such cases, the court may advise that the matter be referred to another procedure. A non-contentious matter may become contentious, if other parties with an interest object.
Procedure
The proceedings are held on the basis of a notice of motion, a grounding affidavit and exhibits. Persons whose interests are affected by the matter are to be given notice. They may consent to waive notice.
Common examples of where an application may be required to the Probate Judge are
- 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 cases for a particular purpose, such as creditors’ applications and limited applications
Will Form Defective
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, referred to, identified and incorporated into the will.
Where a will is defective on its face and does not show proper execution, it may be necessary to apply to the Court where the Probate Officer is not satisfied with the evidence offered as to the proper execution of the will. All available evidence may be put before the Court to show proper execution.
Amendment & Revocation
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.
A codicil may, which alters the appointment of the executor, may require a revocation. An application is made to the Probate Officer to revoke the appointment.
A grant may be amended or revoked by the High Court, following contentious proceedings. A grant of probate may be revoked where a later will is proved. Letters of administration may be revoked where a will is later discovered.
Will Lost Probate Judge
A common form of application to the Probate Judge is where the original will cannot be located or has been mislaid. 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.
The terms of the will must be proved and it must be shown that it was duly executed. Secondary evidence of the original will must be furnished. This should ideally be a copy, although it may be proved by other means, including oral evidence. This may be extremely difficult in practice in some cases.
Evidence must be furnished that a copy of the will has been sought. The relevant solicitors may be required to advertise in the Law Society Gazette 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 protect their interests. Other requisite proofs of execution, and contents, etc. are required. The court may award the costs out of the estate.
Proof Not Revoked
Where a will is not produced, it is presumed to be revoked by destruction in circumstances set out in separate sections. This presumption must be rebutted to admit the will to probate.
The presumption of revocation might be rebutted where it is shown that it was lost in the custody of a solicitor. However, specific proof of loss or destruction is required.
There is a principle of dependent relative revocation. This principle may apply it can be shown that a person revoked a will on the supposition that certain consequences would follow or that certain circumstances would apply. This might include the incorrect assumption that it would revive an earlier will.
The Courts may infer a non-intention to revoke where that condition cannot be fulfilled, was not fulfilled or was frustrated.
Competing Claimants Probate Officer
Where there are a number of applicants in an intestacy case, with the same degree of entitlement, then in most cases, the first to apply obtains the grant. In some cases, there may be a contest as to who should be appointed.
There may be one or more persons who seek to be appointed executor, jointly with or to the exclusion of another. A caveat may have been lodged.
An application may be made to the Probate Officer where there is no residue or substantially no residue to have a grant made to a legatee or devisee entitled to a share of the estate without regard to the usual rights of the person entitled to the share in the residue to probate.
Where more than one person with equal rights 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 the 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.
Competing Claims Probate Judge
The Succession Act permits the High Court to grant an order for representation 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 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 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 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 claimants as the Probate Officer 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.
Foreign Cases Probate Officer
If a person dies domiciled abroad, an applicant may be made for a grant in respect of the 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.
A grant of administration intestate or with the 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.
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.
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.
Persons with Limited Capacity Probate Officer
Where there is no guardian appointed by the Court under the Guardianship of Infants legislation, a guardian may be appointed by Order of the Court or Probate Officer. It is based on an affidavit.
The jurisdiction is limited to and facilitates a grant of representation/ letters of administration 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.
The application is based on an affidavit and made to the Probate Officer. Consent of the Wards of Court Office is required.
Limited Grants Probate Judge
An application may be made for a grant for a limited purpose. This may include a grant for the purpose of preserving assets pending the issue of a grant of representation to a representative who will administer the same. This grant does not allow the distribution of assets.
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.
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 commonly comes up when 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 for the purpose of the litigation. In this case, the claimant may seek to have a party nominated, usually a solicitor, for the purpose of defending proceedings against the estate.