Non-Contentious Proceedings
Succession Act
PART III
Executors and Administrators
Summons to executor to prove or renounce.
[1537 (c. 18)]
16.—The High Court shall have power to summon any person named as executor in a will to prove or renounce probate.
Cesser of right of executor to prove.
[1857 (c. 79) s. 84; 1859 (c. 31) s. 12]
17.—Where a person appointed executor by a will—
(a) survives the testator but dies without having taken out probate, or
(b) is cited to take out probate and does not appear to the citation, or
(c) renounces probate,
his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his estate shall devolve and be committed in like manner as if that person had not been appointed executor.
Withdrawal of renunciation.
[New]
18.—(1) Where an executor who has renounced probate has been permitted, whether before or after the commencement of this Act, to withdraw the renunciation and prove the will, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other personal representative who has previously taken out representation, and a memorandum of the subsequent probate shall be endorsed on the original grant.
(2) This section applies whether the testator died before or after the commencement of this Act.
Death of sole or last surviving executor.
[New]
19.—(1) Where the sole or last surviving executor of a testator dies after the commencement of this Act, the executor of such executor shall not be the executor of that testator.
(2) This section applies whether the testator died before or after the commencement of this Act.
Right of proving executors to exercise powers.
[Cf. 1959 (No. 8) s. 18 (2)]
20.—(1) Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, all the powers which are by this Act or otherwise by law conferred on the personal representative may be exercised by the proving executor or executors or the survivor or survivors of them and shall be as effectual as if all the persons named as executors had concurred therein.
(2) This section applies whether the testator died before or after the commencement of this Act.
Executor not to act while administration is in force.
[1857 (c. 79) s. 80]
21.—Where administration has been granted in respect of the estate, or any part of the estate, of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked or has expired.
Protection of persons acting on probate or administration.
[1857 (c. 79) ss. 82, 83]
22.—(1) Every person making or permitting to be made any payment or disposition in good faith under a representation shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the representation.
(2) Where a representation is revoked, all payments and dispositions made in good faith to a personal representative under the representation before the revocation thereof are a valid discharge to the person making the same; and the personal representative who acted under the revoked representation may retain and reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made.
Liability of person fraudulently obtaining or retaining estate of deceased.
[1634 (sess. 3. c. 10)]
23.—(1) If any person, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any part of the estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the estate received or coming to his hands, or the debt or liability released, after deducting—
(a) any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and
(b) any payment made by him which might properly be made by a personal representative.
(2) In this section, “full valuable consideration” means such valuable consideration as amounts or approximates to the value of that for which it is given.
Liability of estate of personal representative.
[1695 (c. 6) s. 11]
24.—Where a person as personal representative of a deceased person (including an executor in his own wrong) wastes or converts to his own use any part of the estate of the deceased, and dies, his personal representative shall to the extent of the available assets of the defaulter be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living.
Validity of conveyance not affected by revocation of representation.
[New]
25.—(1) All conveyances of any estate or interest in the estate of a deceased person made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted are valid, notwithstanding any subsequent revocation or variation, either before or after the commencement of this Act, of the grant.
(2) This section takes effect without prejudice to any order of the court made before the commencement of this Act, and applies whether the deceased died before or after such commencement.
PART IV
Grants of Representation
Grants of probate.
[1857 (c. 79) s. 6]
26.—(1) The High Court shall have power to grant probate to one or more of the executors of a deceased person, and a grant may be limited in any way the Court thinks fit.
(2) The High Court shall have power to revoke, cancel or recall any grant of probate.
Grants of administration.
[1357 (st. 1. c. 11); 1537 (c. 18); 1959 (No. 8) s. 12]
27.—(1) The High Court shall have power to grant administration (with or without will annexed) of the estate of a deceased person, and a grant may be limited in any way the Court thinks fit.
(2) The High Court shall have power to revoke, cancel or recall any grant of administration.
(3) Subject to subsection (4), the person or persons to whom administration is to be granted shall be determined in accordance with rules of the High Court.
(4) Where by reason of any special circumstances it appears to the High Court (or, in a case within the jurisdiction of the Circuit Court, that Court) to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.
(5) On administration being granted, no person shall be or become entitled without a grant to administer any estate to which that administration relates.
(6) Every person to whom administration is granted shall, subject to any limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.
[1857 (c. 79) ss. 75, 76, 77]
(7) Where any legal proceedings are pending touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, the High Court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the estate of the deceased, and every person to whom such administration is granted shall be subject to the immediate control of the Court and act under its direction.
(8) The Court may, out of the estate of the deceased person, assign to an administrator appointed under subsection (7) such reasonable remuneration as the Court thinks fit.
(9) This section applies whether the deceased died before or after the commencement of this Act.
F15[
Entitlement to grant of probate or administration.
27A.—For the purpose of the application of section 26 or 27 in respect of the estate of a deceased person, the deceased shall be presumed, unless the contrary is shown, not to have been survived by any person related to him whose parents have not married each other or by any person whose relationship with the deceased is deduced through a person whose parents have not married each other.]
Annotations:
Amendments:
F15
Inserted (14.06.1988) by Status of Children Act 1987 (26/1987), s. 30, commenced as per s. 1(2)(b).
F16
Inserted by Children and Family Relationships Act 2015 (9/2015), s. 66 (a) and (c), not commenced as of date of revision.
F17
Substituted by Children and Family Relationships Act 2015 (9/2015), s. 66(b), not commenced as of date of revision.
Modifications (not altering text):
C13
Prospective affecting provision: section renumbered as subs. (1) and amended, and subss. (2) and (3) inserted by Children and Family Relationships Act 2015 (9/2015), s. 66, not commenced as of date of revision.
27A.—F16[(1)]F17[Subject to subsection (2), for the purpose of the application] of section 26 or 27 in respect of the estate of a deceased person, the deceased shall be presumed, unless the contrary is shown, not to have been survived by any person related to him F17[whose parents have not married each other or whose parents are not civil partners of each other] or by any person whose relationship with the deceased is deduced through a person F17[whose parents have not married each other or whose parents are not civil partners of each other].
F16[(2) Subsection (1) shall not apply in relation to a person whose parents have not married each other or whose parents are not civil partners of each other where—
(a) the person has been adopted by a cohabiting couple—
(i) under an adoption order, or
(ii) outside the State, where that adoption is recognised by virtue of the law for the time being in force in the State,
or
(b) they are the parents, under section 5 of the Act of 2015, of the person.
(3) In this section—
“‘Act of 2010’ means the Adoption Act 2010;
‘adoption order’ has the same meaning as it has in section 3(1) of the Act of 2010;
‘cohabiting couple’ has the same meaning as it has in section 3(1) (amended by section 102 of the Act of 2015) of the Act of 2010.]
Editorial Notes:
E6
The shoulder note displayed above (Entitlement to a grant of probate or administration.) is the shoulder note belonging to the amending provision. The amending provision does not include a shoulder note for s. 27A.
Representation of real and personal estate separately or together.
[1959 (No. 8) s. 15]
28.—(1) Representation may be granted either separately in respect of real estate and in respect of personal estate, or in respect of real estate together with personal estate, and may be granted in respect of real estate although there is no personal estate, or in respect of personal estate although there is no real estate.
(2) Where the estate of the deceased person is known to be insolvent, the grant shall not be severed except as regards a trust estate.
Power to grant representation where no estate.
[1959 (No. 8) s. 16]
29.—The High Court shall have jurisdiction to make a grant of representation in respect of a deceased person, notwithstanding that the deceased left no estate in the State, and to make a de bonis non or other form of grant in respect of unadministered estate, notwithstanding that there is no unadministered estate of the deceased in the State.
Power to grant representation to a trust corporation.
[New. Cf. 1928 (No. 9)]
30.—(1) The High Court may—
(a) where a trust corporation is named in a will as executor, whether alone or jointly with another person, grant probate to the corporation either solely or jointly with another person, as the case may require, and
(b) grant administration to a trust corporation, either solely or jointly with another person,
and the corporation may act accordingly as executor or administrator, as the case may be.
(2) Representation shall not be granted to any person on behalf of a trust corporation.
(3) Any officer authorised for the purpose by a trust corporation or the directors or governing body thereof may, on behalf of the corporation, swear affidavits, give security and do any other act or thing which the Court may require with a view to the grant to the corporation of representation, and the acts of an officer so authorised shall be binding on the corporation.
(4) In this Act, “trust corporation” means—
(a) a corporation appointed by the High Court in any particular case to be a trustee;
(b) a corporation empowered by its constitution to undertake trust business, and having a place of business in the State or Northern Ireland, and being—
(i) a company established by Act or charter, or
(ii) an Associated Bank under the Central Bank Act, 1942, or
(iii) a company (whether registered with or without limited liability) within the definition contained in the Companies Act, 1963, or within the meaning of the corresponding law of Northern Ireland, having a capital (in stock or shares) for the time being issued of not less than £250,000, of which not less than £100,000 has been paid up in cash, or
(iv) a company (registered without limited liability) within the definition contained in the said Companies Act or within the meaning of the said law of Northern Ireland, one of the members of which is a corporation within any of the previous provisions of this paragraph; or
F18[(v) a building society authorised under the Building Societies Act, 1989; or]
(c) a corporation which satisfies the President of the High Court that it undertakes the administration of any charitable, ecclesiastical or public trust without remuneration, or that by its constitution it is required to apply the whole of its net income for charitable, ecclesiastical or public purposes and is prohibited from distributing, directly or indirectly, any part thereof by way of profits, and is authorised by the President of the High Court to act in relation to such trusts as a trust corporation.
(5) Where a body corporate, as defined by section 4 of the Bodies Corporate (Executors and Administrators) Act, 1928, is named as executor in a will executed before the commencement of this Act, probate may be granted to that body corporate under this section, notwithstanding that it is not a trust corporation as defined in subsection (4).
Annotations:
Amendments:
F18
Inserted (01.09.1989) by Building Societies Act 1989 (17/1989), s. 29(6), S.I. No. 182 of 1989.
Grant of special administration where personal representative is abroad.
[1857 (c. 79) s. 79; 1859 (c. 31) s. 14]
31.—(1) If at the expiration of twelve months from the death of a person any personal representative of the deceased person to whom a grant has been made is residing out of the jurisdiction of the High Court, the High Court may, on the application of any creditor or person interested in the estate of the deceased person, grant to him in such form as the High Court thinks fit special administration of the estate of the deceased person.
(2) The Court may, for the purpose of any legal proceedings to which the administrator under the special administration is a party, order the transfer into court of any money or securities belonging to the estate of the deceased person, and all persons shall obey any such order.
(3) If the personal representative capable of acting as such returns to and resides within the jurisdiction of the High Court while any legal proceedings to which a special administrator is a party are pending, that personal representative shall be made a party to the legal proceedings, and the costs of and incidental to the special administration and the legal proceedings shall be paid by such person and out of such fund as the court in which the proceedings are pending may direct.
Administration during minority of executor.
[1818 (c. 81); 1857 (c. 79) s. 79; 1859 (c. 31) s. 14]
32.—(1) Where an infant is sole executor of a will, administration with the will annexed shall be granted to his guardian, or to such other person as the High Court thinks fit, until the infant attains the age of twenty-one years and applies for and obtains a grant of probate or letters of administration with the will annexed, and on his attaining that age, and not before, probate of the will may be granted to him.
(2) Where a testator by his will appoints an infant to be an executor, the appointment shall not operate to transfer any interest in the property of the deceased to the infant or to constitute him a personal representative for any purpose unless and until probate is granted to him under this section.
Continuance of legal proceedings after revocation of temporary administration.
[1857 (c. 9) s. 81]
33.—If, while any legal proceedings are pending in any court by or against an administrator to whom a temporary administration has been granted, that administration is revoked, that court may order that the proceedings be continued by or against the new personal representative in like manner as if the proceedings had been originally commenced by or against him, but subject to such conditions and variations, if any, as that court directs.
Administration bonds.
[1959 (No. 8) s. 14]
34.—(1) Every person to whom a grant of administration is made shall give a bond (in this section referred to as an administration bond) to the President of the High Court to inure for the benefit of the President of the High Court for the time being and, if the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar so requires, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.
(2) (a) An administration bond shall be in a penalty of double the amount at which the estate of the deceased is sworn, unless the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar shall in any case direct it to be reduced, in which case the Court, the Probate Officer or the district probate registrar may do so.
(b) The High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar may also direct that more administration bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court, the Probate Officer or the district probate registrar (as the case may be) shall think reasonable.
(3) An administration bond shall be in such form as the President of the High Court may prescribe by rules, and shall include a provision for payment of all death duties payable in respect of the estate of the deceased for which the personal representative is accountable and a further provision for the payment of all income tax and sur-tax payable out of the estate of the deceased.
(4) Where it appears to the satisfaction of the High Court that the condition of an administration bond has been broken, the High Court may, on application in that behalf, order that the bond be assigned to such person as may be specified in the order, and the person to whom the bond is assigned in pursuance of the order shall be entitled to sue thereon in his own name as if it had been originally given to him instead of to the President of the High Court and to recover thereon as trustee for all persons interested the full amount recoverable in respect of the breach of the condition thereof.
(5) Nothing in this section shall require the Chief State Solicitor or the Solicitor for the Attorney General, when applying for or obtaining administration for the use or benefit of the State, to give an administration bond.
[New]
(6) Sureties to administration bonds shall not be required when the grant is made to a trust corporation.
[New]
(7) An administration bond issued by a guarantee society or insurance company approved by the President of the High Court shall be acceptable for the purposes of this section whether the application for the grant is made in person or by a solicitor.
Annotations:
Modifications (not altering text):
C14
Interpretation of inheritance tax clarified (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 113, commenced on enactment. This provision replaced Capital Acquisitions Tax Act 1976, s. 68.
Tax, in relation to certain legislation.
113.—(1) Inheritance tax shall not be a duty or a death duty for the purposes of section 9 of the Succession Act, 1965, but it shall be a death duty for the purposes of—
(a) section 34 (3) of that Act;
(b) the definition of pecuniary legacy in section 3 (1) of that Act; and
(c) paragraph 8 of Part II of the First Schedule to that Act.
Editorial Notes:
E7
Previous affecting provision: Capital Acquisitions Tax Act 1976 (8/1976), s. 68(1)(b), repealed (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 118(1).
Applications for grants and revocations.
[1857 (c. 79) ss. 50, 63]
35.—(1) An application for the grant or revocation of representation may be made to the Probate Office or the district probate registry for the district where the deceased, at the time of his death, had a fixed place of abode.
[R.S.C., O. 79, r. 3; O. 80, r. 3]
(2) The application may be made either in person or through a solicitor.
(3) Where, in any contentious matter arising out of an application to the Probate Office, the High Court is satisfied that the Circuit Court has jurisdiction in the matter, the High Court may remit the matter to the judge of the circuit where the deceased, at the time of his death, had a fixed place of abode and the said judge shall proceed in the matter as if the application had been made to the Circuit Court in the first instance.
Grants in district probate registries.
[1857 (c. 79) ss. 50, 52, 54]
36.—(1) A grant may be made in common form by a district probate registrar in the name of the High Court and under the seal of the registry where the deceased, at the time of his death, had a fixed place of abode within the district where the application for the grant is made.
(2) No grant shall be made by a district probate registrar in any case in which there is contention until the contention is disposed of, or in any case in which it appears to him that a grant ought not to be made without the direction of the Court.
(3) In any case where it appears doubtful to a district probate registrar whether a grant should or should not be made, or where any question arises in relation to a grant, or an application for a grant, the district probate registrar shall send a statement of the matter to the Probate Office for the directions of a judge of the High Court for the time being exercising probate jurisdiction, and the judge may direct the district probate registrar to proceed with the matter in accordance with such instructions as the judge thinks necessary, or may forbid any further proceedings by the district probate registrar in relation to the matter, leaving the party applying for the grant to apply to the High Court through the Probate Office or, if the case is within the jurisdiction of the Circuit Court, to that court.
[1857 (c. 79) ss. 53, 55, 56; 1859 (c. 31) ss. 21, 22]
(4) A district probate registrar shall send to the Probate Office a notice in the prescribed form of every application made in the registry for a grant as soon as may be after the application has been made, and no grant shall be made by him until he has received from that Office a certificate that no other application appears to have been made in respect of the estate of the deceased.
(5) The certificate shall be forwarded as soon as may be to the district probate registrar.
(6) All notices so transmitted to the Probate Office shall be filed and kept in that Office.
(7) Where any such notice is received from any district probate registry, the Probate Officer shall examine all notices of applications for grants received from the several other district probate registries and all applications for grants made at the Probate Office, so far as may be necessary for the purpose of ascertaining whether more than one application for a grant in respect of the estate of the same deceased person has been made, and shall communicate with the district probate registrar as occasion may require in relation thereto.
(8) A district probate registrar shall, twice in every month, transmit to the Probate Office a list in the prescribed form of the grants made by him and not included in a previous return, and also copies of the wills to which the grants relate, certified by him to be correct.
(9) A district probate registrar shall file and preserve all original wills of which probate or administration with the will annexed has been granted by him, subject to such regulations with respect to the preservation and inspection of the wills as may from time to time be made by the President of the High Court.
(10) The President of the High Court may from time to time give directions for the disposal, whether by destruction or otherwise, of such of the notices kept in the Probate Office in pursuance of this section, as have, in his opinion, ceased, owing to lapse of time, to be of any public value.
Second and subsequent grants.
[1859 (c. 31) s. 16]
37.—Second and subsequent grants shall be made in the Probate Office or district probate registry, as the case may be, from which the original grant issued.
Caveats.
[1857 (c. 79) s. 57]
38.—(1) A caveat against a grant may be entered in the Probate Office or in any district probate registry.
(2) On a caveat being entered in a district probate registry, the district probate registrar shall immediately send a copy thereof to the Probate Office to be entered among the caveats in that Office.
Calendars of grants.
[1959 (No. 8) s. 17]
39.—(1) The President of the High Court shall from time to time cause to be prepared in the Probate Office calendars of grants made in the Probate Office and in the several district probate registries for such periods as the President of the High Court may direct.
(2) Every such calendar shall contain a note of every probate or administration with the will annexed and of every other administration granted within the period specified in the calendar, setting forth—
(a) the date of the grant,
(b) the place (being the Probate Office or a district probate registry) in which the grant was made,
(c) the name and address and the date of death of the testator or intestate,
(d) the names and descriptions of the executors or administrators, and
(e) the value of the estate, if any.
(3) A copy of every calendar so prepared shall be sent by post or otherwise to every district probate registry, and every copy so sent shall be kept in the district probate registry to which it is sent.
(4) Calendars and copies may be inspected in accordance with the directions of the President of the High Court.
Copies of wills, etc., to be delivered to Revenue Commissioners.
[1857 (c. 79) s. 100]
40.—Subject to any arrangements which may from time to time be made between the President of the High Court and the Revenue Commissioners, the Probate Office and every district probate registry shall, within such period after a grant as the President may direct, deliver to the Commissioners or their proper officer the following documents—
(a) in the case of a probate or of administration with a will annexed, the Inland Revenue affidavit and a copy of the will (if required);
(b) in the case of administration without a will annexed, the Inland Revenue affidavit;
(c) in every case of administration, a copy or extract of the administration;
(d) in every case, such certificate or note of the grant as the Commissioners may require.
Issue of grants of representation in case of Circuit Court decrees.
[1857 (c. 79) s. 59]
41.—On a decree being made by the Circuit Court for the grant or revocation of representation the Probate Officer or the district probate registrar shall, on the application of a person entitled thereto, grant representation in compliance with the decree or, as the case may require, recall or vary, according to the effect of the decree, any representation already granted.
Deposit and inspection of wills and other documents.
[1857 (c. 79) s. 71]
42.—(1) The following documents—
(a) all original wills of which representation is granted in the Probate Office,
(b) copies of all wills the originals of which are to be preserved in district probate registries, and
(c) such other documents as the President of the High Court may direct,
shall be deposited and preserved in the Probate Office under the control of the President of the High Court and may be inspected in accordance with his directions.
(2) Subsection (1) shall have effect subject to the provisions of the Public Records (Ireland) Act, 1867, which provides for the ultimate removal of records to the Public Record Office for safe keeping.
Official copies of wills and grants.
[1857 (c. 79) s. 74]
43.—(1) An official copy of the whole or any part of a will, or of a grant of representation, may be obtained from the Probate Office or district probate registry where the will has been proved or the representation granted.
(2) An official copy of a grant of representation shall be sufficient evidence of the grant. This subsection applies whether the grant was made before or after the commencement of this Act.
Trial by jury of questions of fact.
[1857 (c. 79) s. 41]
44.—(1) The court may cause any question of fact arising in any proceedings under this Act to be tried by a jury, and such question shall be so tried in any case where all the parties to the proceedings concur in an application to the court for a jury.
(2) Where any party makes an application for a jury without the concurrence of the other party and the court refuses the application, the refusal of the court shall be subject to appeal.
Annotations:
Modifications (not altering text):
C15
Application of section restricted (1.03.1972) by Courts Act 1971 (36/1971), s. 6, in force as per s. 25(4).
Abolition of juries in civil cases in Circuit Court.
6.—Notwithstanding section 94 of the Act of 1924 or section 44 of the Succession Act, 1965, a civil action in the Circuit Court or a question of fact or an issue arising in the action or a question of fact arising in any proceedings in the Circuit Court under the Succession Act, 1965, shall not be tried by a jury.
Rules of Superior Courts
Order 79
The Probate Office
1. This Order shall apply only to non-contentious probate practice and procedure in the Probate Office.
I. Application for probate or letters of administration
2. All proceedings relating to probate and administration shall be entitled:
“THE HIGH COURT
PROBATE”
3.[1] Applications for probate or letters of administration may be made at the Probate Office in all cases. Such applications may be made in accordance with Part XXIX of this Order, or in accordance with Order 117A, rule 5, as the case may be.
4. The Probate Officer shall not allow probate or letters of administration to issue until all the inquiries which he may see fit to institute have been answered to his satisfaction. The Probate Officer is, notwithstanding, to afford as great facility for obtaining grants of probate or administration as is consistent with a due regard to the prevention of error or fraud.
5. (1)[2] [3] In determining to whom letters of administration of the estate of a person who died on or after the 1st of January, 1967, wholly intestate and domiciled in Ireland shall be granted, the persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority, namely:
(a) the surviving spouse or, as the case may be, the surviving civil partner;
(b) the surviving spouse or, as the case may be, the surviving civil partner jointly with a child of the deceased nominated by the said spouse;
(c) the child or children of the deceased (including any person entitled by virtue of the Status of Children Act 1987, to succeed to the estate of the deceased);
(d) the issue of any child who has died during the lifetime of the deceased;
(e) the father or mother of the deceased or where the presumption contained in section 4A(2) of the Succession Act 1965 (inserted by section 29 of the Status of Children Act 1987) applies, the mother;
(f) brothers and sisters of the deceased (whether of the whole or half-blood);
(g) where any brother or sister survived the deceased, the children of a predeceased brother or sister;
(h) nephews and nieces of the deceased (whether of the whole or half-blood);
(i) grandparents;
(j) uncles and aunts (whether of the whole or half-blood);
(k) great grandparents;
(l) other next-of-kin of nearest degree (whether of the whole or half-blood) preferring collaterals to direct lineal ancestors;
(m) the nominee of the State;
(2) The personal representative of any of the persons hereinbefore mentioned (other than the nominee of the State) shall have the same right to a grant as the person whom he represents, subject to sub-rule (9)(b) hereof which provides that live interests be preferred to dead interests.
(3) Where there are conflicting claims for a grant among the 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 said period, to such person as the Court shall select.
(4) If all persons entitled to a grant under the foregoing provisions of this direction have been cleared off a grant may be made to a creditor of the deceased or, subject to sub-rule (9)(b) hereof, the personal representative of a creditor,
(5)[4] [5] The provisions of the Adoption Act 2010 shall apply in determining the title to a grant as they apply to the devolution of property on intestacy.
(6) Where the deceased died on or after the 1st day of January, 1967, domiciled in Ireland, leaving a will appointing no executor, or appointing an executor or executors who have been cleared off by death, renunciation, citation, or otherwise, the person, or persons entitled to a grant of administration with will annexed shall be determined in accordance with the following order of priority, namely:
(a) any residuary legatee or devisee holding in trust for any other person;
(b) any residuary legatee or devisee for life;
(c) any other residuary legatee or devisee or, subject to sub-rule (9)(b) hereof, which provides that live interests be preferred to dead interests, the personal representative of any such residuary legatee or devisee;
(d) any residuary legatee or devisee for life jointly with any ultimate residuary legatee or devisee on the renunciation or consent of the remaining residuary legatees or devisees for life;
(e) where the residue is not in terms wholly disposed of, the Probate Officer may, if he is of opinion that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for a grant, allow a grant to be made to any legatee or devisee entitled to, or to share in, the estate so disposed of, without regard to the person entitled to share in any residue not disposed of by the will;
(f) where the residue is not wholly disposed of by the will, any person (other than a creditor) entitled to a grant in the event of a total intestacy according to the order of priority set out in sub-rules (1) to (5);
(g) any legatee or devisee or any creditor or, subject to sub-rule (9)(b), the personal representative of any such person.
(7) Where a gift to any person fails by reason of section 82 of the Succession Act 1965 (which provides that gifts to attesting witnesses or their spouses shall be void) such person shall not have any right to a grant as a beneficiary named in the will but this is without prejudice to his right to a grant in any other capacity.
(8) Where the deceased died on or after the 1st day of January, 1967, domiciled outside Ireland,
(a) a grant of administration intestate or with will annexed of the moveable estate may be made by the Probate Officer as follows, namely:
(i) to the person entrusted with the administration of the moveable estate by the Court having jurisdiction at the place where the deceased died domiciled; or
(ii) to the person entitled to administer the moveable estate by the law of the place where the deceased died domiciled;
(b) 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 had died domiciled in Ireland;
(c) nothing in this sub-rule shall be construed as prejudicially affecting any power which might otherwise be exerciseable, if no executor is named in the will and if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, of making a grant of probate to that person.
(9) (a) A grant may be given to any person entitled thereto without notice to other persons entitled in the same class, but the Probate Officer may require notice to be given;
(b) unless the Court or Probate Officer otherwise directs a grant shall be given to a living member of a class entitled thereto in preference to the personal representative of a member of such class who has died after the deceased;
(c) unless the Court or Probate Officer otherwise directs a grant shall be given to a person not under legal disability in preference to the committee or guardian of a person under a legal disability equally entitled provided that in the case of an application by the committee of a person under a legal disability the Court or Probate Officer shall, before a grant is given, consult the Registrar of Wards of Court.
(10) Where a will is in any language other than the Irish or English language the Probate Officer may admit it to proof in terms of a translation thereof in the Irish or English language.
(11) Where the only person entitled to the estate of the deceased, whether under a will or on intestacy, has assigned his whole interest in the estate, the assignee shall replace the assignor in the order of priority for a grant.
(12) Where a person is entitled to the beneficial interest in the whole estate of a deceased, administration may on the renunciation and nomination of that person be granted to the person, or jointly to the persons, who would be entitled to the estate or to a share in the estate of the person so renouncing if that person had died intestate.
(13) Where the parents of a deceased are entitled to the beneficial interest in the whole of the estate of the said deceased, administration may on the renunciation and consent of those parents be granted to the child or jointly to the children nominated by the parents.
(14) No grant of administration shall be made jointly to more than three persons unless the Probate Officer otherwise directs.
(15) When, on the death of a personal representative of a deceased without having fully administered the estate, it is necessary to grant administration of the unadministered estate of the deceased, the rules that shall apply to the ascertainment of the new grantee shall be those that apply on an application for an original grant.
(16) In determining to whom a grant of administration intestate or with will annexed may be made in the case of a person who died prior to the 1st day of January, 1967, the rules heretofore in force applicable to such a case shall be observed.
II. Execution of a Will
6. If there be no attestation clause to a will presented for a probate, or administration with will annexed, or if the attestation clause thereto be insufficient, the Probate Officer shall require an affidavit from at least one of the subscribing witnesses, if they or either of them be living, to prove that the statutory provisions in reference to the execution of wills were in fact complied with. A note signed by the Probate Officer shall be made on the engrossed copy will annexed to the probate or administration to the effect that affidavits of due execution, or as the case may be, have been filed.
7. If on perusing such affidavits as are filed it appears to the Probate Officer, that the statutory provisions applicable were not complied with, the Probate Officer shall refuse probate of the purported will.
8. If both the subscribing witnesses are dead, or if from other circumstances no affidavit can be obtained from either of them, resort shall be had to other persons (if any) who may have been present at the execution of the will, but if no affidavit of any such other person can be obtained, evidence on affidavit shall be procured of the fact and of the handwriting of the deceased and the subscribing witnesses and also of any circumstances which may raise a presumption in favour of the due execution.
9. If, on perusing the affidavit or affidavits setting forth the facts of the case, it appears doubtful whether the will has been duly executed, the Probate Officer shall require the parties to bring the matter before the Court.
III. Interlineations and Alterations
10. Interlineations and alterations are invalid unless they existed in the will prior to its execution, or, if made afterwards, unless they have been executed and attested in the mode required by law, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto.
11. When interlineations or alterations appear in the will (unless duly executed, or recited in, or otherwise identified by, the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution shall be filed, except when the alterations are of but small importance, and are evidenced by the initials of the attesting witnesses.
IV. Erasures and Obliterations
12. Erasures and obliterations are not to prevail unless proved to have existed in the will prior to its execution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto. If no satisfactory evidence can be adduced as to the time when such erasures and obliterations were made, and the words erased or obliterated be not entirely effaced, but can upon inspection of the paper be ascertained, they must form part of the probate. In every case of words having been erased or obliterated which might have been of importance, an affidavit shall be required.
V. Documents referred to in a Will
13. If a will contain a reference to any deed, paper, memorandum, or other document, of such a nature as to raise a question whether it ought, or ought not, to form a constituent part of the will, such deed, paper, memorandum, or other document shall be produced, with a view to ascertaining whether it be entitled to probate; and if not produced, its non-production shall be accounted for.
14. No deed, paper, memorandum, or other document shall be admitted to probate as part of a will, unless it was in existence at the time when the will was executed, and is therein referred to.
VI. Appearance of the Paper
15. If there are any vestiges of sealing-wax or wafers, or other marks, upon the testamentary papers, leading to the inference that a paper, memorandum, or other document has been annexed, or attached to the same, such paper, memorandum, or other document shall be produced, and if not produced, its non-production shall be accounted for.
VII. Pencil writing on Wills
16. When a will is written in pencil, or when any pencil writing appears on a will, script, or other document filed in the Probate Office, a facsimile copy of the will, script, or other document, or of the pages or sheets thereof containing the pencil writing, shall also be filed, with those portions written in red ink which appear in pencil in the original.
VIII. Application by Trust Corporation
17. When a trust corporation makes an application for a grant the affidavit necessary to lead to the grant shall be sworn by an official authorised to do so on its behalf.
18. The authorisation of an official to swear such affidavit shall, in the case of a trust corporation having a board of governors, board of directors, or other governing body, be made by resolution of such board of governors, board of directors or other governing body, and in every other case shall be made by resolution of the trust corporation.
19. With such an application by a trust corporation there shall be lodged a copy (sealed with the seal of such trust corporation) of the resolution authorising an official to swear the affidavit necessary to obtain the grant. Where such a copy as aforesaid has already been lodged with an earlier application it shall thereafter be sufficient to lodge a Photostat of such copy.
IX. Limited Administration
20. Limited administration shall not be granted unless every person entitled to the general grant has consented or renounced, or has been cited and failed to appear, unless the Court or Probate Officer otherwise directs. In this rule the word “limited” means limited to part only of the assets or estate of the deceased.
21. No person entitled to a general grant of administration of the estate of the deceased will be permitted to take a limited grant, except by order of the Court.
X. Administration under the Succession Act 1965
22. Whenever the Court, under the Succession Act 1965, section 27, appoints as administrator someone other than a person who would otherwise be entitled to the grant, the fact that an order under the section has been made shall be stated in the oath of the administrator, in the grant of administration and in the administration bond.
XI. Grant to an Attorney
23. In the case of a person residing out of, or about to leave the jurisdiction of the Court, or who, in the opinion of the Court or the Probate Officer, is suffering from a severe continuing physical disability, administration, or administration with the will annexed, may be granted to his attorney, acting under a power of attorney.
XII. Grant to a Guardian
24. A grant of administration may be made to a guardian of an infant for the infant’s use.
25. In a case where any infant has not a testamentary guardian or a guardian appointed by the Court, or by or under the provisions of the Guardianship of Infants Act 1964, a guardian shall be assigned by order of the Court or of the Probate Officer. The application for such order shall be grounded on an affidavit showing as nearly as possible the amount of the assets, the age of the infant, and with whom he resides, that the proposed guardian is either the nearest relation of the infant, or that the nearest relation has renounced his right to the guardianship, or is consenting to the assignment of the proposed guardian, and that such proposed guardian is ready to undertake the guardianship. On such application the Court or Probate Officer shall have regard to the expressed wishes of any infant over the age of twelve years.
XIII. Grant to a Committee
26. A grant of administration may be made to the committee of a person of unsound mind for such person’s use and benefit.
27. In a case where a person of unsound mind has not a committee appointed by the Court, a grant may issue to such person as the Probate Officer may by order assign with the consent of the Registrar of Wards of Court. The application for such order shall be grounded on an affidavit of the applicant showing the amount of the assets, the age and residence of the person of unsound mind and his relationship to the applicant together with an affidavit of a medical practitioner relating to the incapacity of such person.
XIV. Administrator’s oath
28. (1) The oath of an administrator shall be so worded as to clear off all persons having a prior right to the grant. Where there are prior interests the grant shall show on its face how they have been cleared off.
(2) In administration of a special character, the statement in the oath and the letters of administration shall be framed in accordance with the facts of the case.
(3) The value of the property stated in the administrator’s oath shall be verified by other affidavits if required by the Probate Officer.
XV. Administration bond
29. Administration bonds shall be attested by the Probate Officer or assistant Probate Officer or by a District Registrar, or by a commissioner or other person now or hereafter to be authorised to take affidavits; but in no case are they to be attested by the solicitor or agent of the party who executes them. The signature of the administrator to such a bond, if not taken in the Probate Office, shall be attested by the same person who administers the oath to such administrator unless the Court or the Probate Officer shall otherwise order.
30. The Probate Officer is to take care (as far as possible) that the sureties to administration bonds are responsible persons.
31. The sureties to administration bonds shall justify in the gross amount at which the estate of the deceased is sworn unless the Court or the Probate Officer shall otherwise order.
32. The form of administration bond prescribed by the President of the High Court from time to time shall be used in the case of estates of persons dying on or after the 1st January, 1967. The form set out in Appendix Q, Part II, is the form prescribed at the date of the making of these Rules. In the case of estates of persons dying before 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.
XVI. Issue of grant
33. No probate or letters of administration shall issue until after the lapse of fourteen days from the death of the deceased, unless by order of the Court or of the Probate Officer.
34. All probates or letters of administration issued from the Probate Office shall be filled up there; and any former grant which has been revoked or has ceased shall be cleared off therein.
35. The oath of an executor or an administrator shall be subscribed and sworn as an affidavit and filed in the Probate Office.
36. The Probate Officer may, in cases where he deems it necessary, require proof, in addition to the oath of the executor or administrator, of the identity of the deceased, or of the party applying for the grant.
37. Every will, or copy of a will, exhibited in an oath of an executor or administrator with will annexed, shall be marked by such executor or administrator, and by the person before whom he is sworn. Such marking shall be made on the back of the will or elsewhere so as to be clearly distinguishable from the will itself and its attestation.
XVII. Renunciation
38. No person who renounces probate of a will or letters of administration of the estate of a deceased person, in one character, shall be allowed to obtain representation to the same deceased in another character, unless the Court shall otherwise order.
XVIII. Affidavits
39. Order 40, Part 1, shall apply to affidavits filed or used in the Probate Office.
40. In every case where an affidavit is made by a subscribing witness to a will for the purpose of proving the execution thereof, such subscribing witness shall depose as to the mode in which the said will was executed and attested.
XIX. Caveats
41. Any person intending to oppose the issuing of a grant of probate or letters of administration shall either personally or by his solicitor, lodge a caveat in the Probate Office, or in a District Registry.
42. A caveat shall bear date of the day it is lodged, and shall remain in force for the space of six months only, and then expire and be of no effect; but caveats may be renewed from time to time.
43.[6] Every caveat shall state the name and address of the person on whose behalf the same is lodged, and the registered place of business of the solicitor lodging the same, or if there be no solicitor, an address for service at which the caveat can be warned, and where the case is so, the caveat shall state that it is lodged only with a view to seeing that the security is sufficient.
44. Any person who shall knowingly lodge, or cause to be lodged in the Probate Office, a caveat in the name of a fictitious person, or with a false address of the person on whose behalf it purports to be lodged, shall be deemed guilty of a contempt of Court.
45. The Probate Officer shall, immediately upon a caveat being lodged, send notice thereof to the District Registrar of the district in which it is alleged the deceased resided at the time of his death, or in which he is known to have had a fixed place of abode at the time of his death.
46. No caveat shall affect any grant made on the day on which the caveat has been lodged, or on the day on which notice is received of a caveat having been lodged in a District Registry.
47. All caveats shall be warned from the Probate Office. The warning shall be served by delivery of a copy thereof at the place mentioned in the caveat as the registered place of business of the solicitor, or address for service of the person who lodged the caveat, as the case may be, within 14 days of the date thereof; and otherwise shall be deemed inoperative unless the Court or the Probate Officer shall make a special order on the subject.
48. In addition to the service of the warning the Probate Officer shall, on the same day on which the warning is signed by him, send by post a copy of it to the solicitor or person who lodged the caveat at the registered place of business or address for service therein mentioned and on the same day a memorandum of such posting shall be entered in the book to be kept for that purpose.
49.[7] The warning to a caveat shall state the name and interest of the party on whose behalf the same is issued; and if such person claims under a will, it shall state the date, if any, of such will, and in any event state the registered place of business of the solicitor lodging the same, or if there be no solicitor, an address for service.
50. An appearance to a warning shall be entered in the Probate Office within 14 days of the service thereof, provided that the time for appearance may be considered to be extended until action on default has been taken under rule 51.
51. In order to clear off a caveat, when no appearance has been entered to a warning duly served, an affidavit of the service of the warning in manner required by rule 47 and a certificate of non-appearance shall be filed.
XX. Citations
52. A citation shall not issue under the seal of the Court until an affidavit, in verification of the averments it contains, has been filed in the Probate Office. All citations shall issue from the Probate Office.
53. (1) When the person to be served with a citation is within the jurisdiction or being abroad is a citizen of Ireland, the citation itself shall be served on him.
(2) When the person to be served, being abroad, is not a citizen of Ireland, notice only of the citation shall be served on him.
(3) The affidavit to lead to a citation shall in all cases in which any person to be served is outside the jurisdiction show whether such person is or is not a citizen of Ireland.
(4) A citation, or notice of a citation, shall be served personally when that can be done.
(5) Where personal service is intended to be affected, no order of the Court shall be necessary for the issue of the citation.
(6) Where personal service cannot be affected the party desiring to serve the citation shall apply to the Court for directions as to the mode of service.
54. A citation shall not be signed by the Probate Officer unless and until a caveat shall have been entered against any grant being made in respect of the estate of the deceased to which such citation relates, and notice thereof shall be sent to the District Registrar of the district in which the deceased appears to have had a residence at the time of his death.
55.[8] A citation shall be written, typed or printed, and the party extracting the same, or his solicitor, shall take it together with a copy thereof to the Probate Office and there deposit the copy, and get the citation signed and sealed. The citation shall contain a statement of the registered place of business of the solicitor extracting the same, or if extracted by a party in person, an address for service.
56. An appearance to a citation shall be entered in the Probate Office within 14 days of the service thereof, provided that the time for appearance may be considered to be extended until action on default has been taken under rule 57.
57. If the party cited to accept or refuse probate or administration having been served with a citation, shall not appear within the time limited by the citation, or if the time for appearing shall be extended by the Court, or the Probate Officer, and such party shall not appear within such extended time, his non-appearance shall be deemed and taken as and for a renunciation of his right to probate or administration, as the case may be, and the party citing shall be entitled to obtain from the Probate Officer a side-bar order in the estate of the deceased to the following effect:
“on reading citation and affidavit of [ • ] it is ordered that the non-appearance of C.D. (naming the party cited) be taken as and for a renunciation of his right to probate (or administration)”.
58. A party cited to accept or refuse probate or administration and desiring to accept, shall so state on entering his appearance, and thereupon the party citing shall be entitled to obtain from the Probate Officer a side-bar order in the estate of the deceased to the following effect:
“On reading the citation, and (party cited) having in his appearance stated his desire to accept probate (or administration) let him extract same within fourteen days from the date of service of this order upon him and in case he shall not do so within that time, or within such further time (if any) as the Court or the Probate Officer shall allow for that purpose, let his not doing so be deemed and taken as and for a renunciation of his right to probate (or administration)”.
A copy of such side-bar order shall be served forthwith on the party appearing.
XXI. Production of Will
59. Applications for an order for the production of papers or writings purporting to be testamentary may be made to the Court by motion on affidavit, whether a suit is or is not pending. If it can be shown on affidavit that a testamentary paper is in the possession, within the power, or under the control of any person, a subpoena for the production of the same may be issued by order of the Probate Officer.
60. Any person bringing in any paper or writing purporting to be testamentary, in obedience to subpoena, is to take it in the first instance to the Probate Office, where the person designated in writing for that purpose by the Probate Officer shall prepare and sign a minute recording the delivery thereof.
61. The minute is to be entered in a book to be kept for that purpose; and the fee for the entry, and a further fee for filing each testamentary paper, will then be payable. If these fees should not be paid by the person bringing in the will, the same are to be charged to the person who may first apply to the Probate Office to make use of the will so brought in. In case the person bringing in a will may desire to have a voucher for its delivery to the Probate Office, he may take an attested copy of the minute on paying the prescribed fee.
62. Any person served with a subpoena to bring in a testamentary paper is at liberty to enter an appearance and show cause for not bringing in such testamentary paper.
XXII. Blind and Illiterate Testator
63. The Probate Officer shall not allow probate of the will or administration with the will annexed, of any blind or illiterate person, to issue, unless he is satisfied by evidence on affidavit, that the will was read over to the testator before its execution, or that the testator had at such time knowledge of its contents.
XXIII. Alteration in Grant
64. Where any alteration is made in a grant which has issued from a District Registry, or where any such grant is revoked, and the volume of the printed calendar containing the entry of such grant has been forwarded to the District Registrars, notice of such alteration or revocation shall without delay be forwarded by the Probate Officer to all the District Registrars.
XXIV. Notice to Attorney General
65.[9] In all cases where application is made for letters of administration (intestate or with a Will by which all the estate is not disposed of annexed) of the estate of a person dying or presumed to have died without known relation, notice of such application shall be given to the Attorney General, in order that he may determine whether it will be expedient to intervene on the part of the State; and no grant is to be issued until he has signified the course it will be proper to take.
66. (1) In the case of a person dying intestate on or after the 1st day of January, 1967, without any known relation, a citation shall be issued directed to the next-of-kin (if any) and all persons having or claiming to have any interest in the estate of the deceased, and (unless such citation is being issued by the State) to the Attorney General.
(2) In the case of a person dying intestate before the 1st day of January, 1967, without any known relation a citation shall be issued directed to such persons as the rules heretofore in force prescribed.
(3) Service of such citation shall be effected in such manner as the Court or Probate Officer may direct. Such citation shall also be served on the Attorney General, and notice of his intention not to intervene shall be obtained.
XXV. Transmission of Papers
67. When an application is made to the Court, in relation to an application for a grant at a District Registry, the District Registrar shall transmit all relevant original papers and documents to the Probate Office; and the same, after the directions of the Court have been taken, shall on the application of the parties (unless the Court shall otherwise direct) be returned to the District Registrar, together with an attested copy of the order of the Court.
68. Original papers shall be forwarded to the Probate Office whenever an inspection of them is necessary to enable the Probate Officer to answer the questions submitted to him by a District Registrar. Papers and other documents may be transmitted by a District Registrar to the Probate Officer and by the Probate Officer to a District Registrar by registered post.
XXVI. Copies of wills
69. Copies of wills to be annexed to the probate or letters of administration shall be written in a legible hand or printed or typewritten or, in suitable cases, photocopied as the Probate Officer shall direct.
70. Copies of wills and other testamentary documents shall be bespoken in the Probate Office. Every such copy required to be certified shall be certified under the hand of the Probate Officer or some person in the Probate Office designated in writing for such purpose by the Probate Officer.
71. The seal of the Court shall not be affixed to any copy of a will or other document, unless the same has been attested and certified.
XXVII. Production of Documents
72. (1) If a will or other document filed in the Probate Office is required to be produced at any other place, application shall be made for that purpose in sufficient time to allow for making and examining a copy of such will or other document.
(2) On the making of such an application, there shall (unless the Court or the Probate Officer otherwise directs) be made a copy of such will or other document, which copy shall be examined with the original, and such examined copy shall be deposited in place of the original pending its return.
(3) When the will or other document is required for production in the High Court on Circuit, or in the Circuit Court, such will or other document may, by direction of the Probate Officer, be sent by registered post to the appropriate County Registrar.
XXVIII. Sureties
73. No practising solicitor, or clerk or apprentice to a practising solicitor shall be admitted as surety to an administration bond, without the leave of the Court or the Probate Officer.
XXIX. Personal application for grant
74. Persons wishing to obtain grants of probate or letters of administration without the intervention of a solicitor shall apply at the Probate Office in person, and not by letter.
75. No such application will be received through an agent.
76. A personal applicant shall not be attended by another person acting or appearing to act as his adviser, unless the Probate Officer otherwise permits.
77. An application which has in the first instance been made through a solicitor shall not be afterwards treated as a personal application, unless the Probate Officer otherwise directs.
78. An application for a grant of probate or administration in a case which has already been before the Court (on motion or otherwise) shall not be entertained as a personal application, but shall be made through a solicitor, unless the Probate Officer otherwise directs.
79. Whenever it becomes necessary in the course of a personal application to obtain the directions of the Court, the application shall not be proceeded with until such directions have been obtained.
80. The papers necessary to lead to the grant applied for shall be prepared and sworn in the Probate Office. However, an applicant may bring such papers or any of them, filled up, and if correct they may be received, but if already sworn, shall be resworn. Any papers once received in the Probate Office shall not be given out unless under special circumstances by permission of the Probate Officer.
XXX. Miscellaneous
81. Every applicant for a grant of probate or letters of administration shall produce a certificate of death or burial of the deceased, or give a satisfactory reason for the non-production thereof.
82. The time fixed by a warning or citation for entering an appearance, or by subpoena to bring in a testamentary paper, shall in all cases be exclusive of any day on which the Probate Office is lawfully closed.
83. The Probate Officer shall be at liberty to act upon the certificate of the Deputy or Assistant-Deputy Keeper of the Records (or in their absence of an officer of the Public Records Office nominated by the Deputy Keeper for that purpose), that no will appears to have been proved, or that no administration appears to have been granted of the goods or estate of a deceased person, or that no unproved will or testamentary document of such deceased person appears amongst the Records during any specified period, included in the period for which the records of probates, administrations, and unproved wills shall have been transferred to the Public Record Office, save such as shall be mentioned in such certificate, for all intents and purposes, as if a search had been made in the said office by an officer of the Probate Office.
84.[10] The Certificate required to be given by the proper officer of the Court, under the Customs and Inland Revenue Act 1881, section 30, as amended by the Capital Acquisitions Tax Consolidation Act 2003, for the purposes of the Finance Act 1894, shall be in such form as the Probate Officer shall from time to time prescribe according to the circumstances of the case.
85. This Order applies equally to codicils as to wills.
86. In the case of the estates of persons dying on or after the 1st January, 1967, the forms in Appendix Q, Part I shall, where applicable, be used. In the case of estates of persons dying before the 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.
87. On ex-parte applications in probate causes and matters, a motion paper shall be lodged with the Probate Officer two clear days before the day on which such motion or application shall be moved or made, with an affidavit or affidavits of any facts to be brought under the notice of the Court in support of the same. The motion paper shall contain a short statement of the principal facts upon which the motion or application is grounded, and conclude with the terms in which the motion is to be made. This statement shall comprise no facts which are not supported by affidavit or official documents, and any rule made by the Probate Officer on the subject of the motion or application shall be mentioned in the motion paper.
88. Motion papers in probate causes and matters shall set forth the style and object of, and the names and descriptions of the parties to, the cause or proceeding before the Court, the proceedings already had in the cause, and the dates of the same, the prayer of the party on whose behalf the motion is made and briefly the circumstances on which it is founded. If the motion paper tendered is deficient in any of the above particulars, it shall not be received without the permission of the Probate Officer. On depositing the motion paper in the Probate Office, the affidavits in support of the motion and a copy of any testamentary paper writing therein referred to and, if required by the Probate Officer, any original documents referred to in such affidavits or to be referred to on the hearing of the motion shall also be left in the Probate Office; or in case such affidavits or documents have been already filed or deposited the same shall be searched for, looked up, and deposited with the proper officer, to be sent with the motion paper to the Court.
89. (1) An appearance in matters to which this Order relates shall be entered in the Probate Office.
(2) Every order of the Court in such matters shall be issued out of the Probate Office.
[1] Order 79 rule 3 substituted by SI 692 of 2011, effective 11 January 2012.
[2] Order 79 rules 5(1)(c) and 5(1)(e) substituted by SI 20 of 1989, effective 13 February 1989.
[3] Order 79 rules 5(1)(a) and 5(1)(b) amended by SI 348 of 2011, effective 31 July 2011. SI 348 of 2011 inserted references to “surviving civil partner.”
[4] Order 79 rule 5(5) substituted by SI 20 of 1989, effective 13 February 1989.
[5] Order 79 rule 5(5) substituted by SI 469 of 2015, effective 25 November 2015.
[6] Order 79 rule 43 amended by SI 307 of 2013, effective 26 August 2013. This deleted the words “(within the jurisdiction)” following “an address for service”.
[7] Order 79 rule 49 amended by SI 307 of 2013, effective 26 August 2013. This deleted the words “within the jurisdiction” following “an address for service”.
[8] Order 79 rule 55 amended by SI 307 of 2013, effective 26 August 2013. This deleted the words “within the jurisdiction” following “an address for service”.
[9] Order 79 rule 65 substituted by SI 20 of 1989, effective 13 February 1989.
[10] Order 79 rule 84 amended by schedule 3 of the Capital Acquisitions Tax Consolidation Act 2003, effective 21 February 2003. This substituted “Capital Acquisitions Tax Act 1976” with “Capital Acquisitions Tax Consolidation Act 2003”.
Order 80
The District Probate Registries
1. This Order shall apply only to non-contentious Probate practice and procedure.
I. Application for probate or letters of administration
2. Application for probate or letters of administration may be made at the Probate office in all cases. Application may also be made at a District Registry in cases where the deceased, at the time of his death, had a fixed place of abode within the district in which the application is made. A District Registrar, before he entertains such application, shall ascertain that the deceased had, at the time of his death, such fixed place of abode.
3. Such application may be made in District Registries through a solicitor or in person.
4. No District Registrar or clerk in a District Registry shall directly or indirectly transact business for himself, or as the solicitor for any other person in the District Registry to which he has been appointed. The public offices of the several District Registries shall be open for business upon each of the days upon which and the hours during which it is prescribed that the offices of the High Court shall be open.
5. A District Registrar shall not allow probate or letters of administration to issue until all the inquiries which he may see fit to institute have been answered to his satisfaction, particularly when applications are made in person. A District Registrar shall, notwithstanding, afford as great facility for obtaining grants of probate or administration as is consistent with a due regard to the prevention of error or fraud.
6. (1)[1] [2] In determining to whom letters of administration of the estate of a person who died on or after the 1st day of January, 1967, wholly intestate and domiciled in the Republic of Ireland, shall be granted the persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority, namely:
(a) the surviving spouse or, as the case may be, the surviving civil partner;
(b) the surviving spouse or, as the case may be, the surviving civil partner jointly with a child of the deceased nominated by the said spouse;
(c) the child or children of the deceased (including any person entitled by virtue of the Status of Children Act 1987, to succeed to the estate of the deceased);
(d) the issue of any child who has died during the lifetime of the deceased;
(e) the father or mother of the deceased or where the presumption contained in Section 4A(2) of the Succession Act 1965, (inserted by Section 29 of the Status of Children Act 1987) applies, the mother;
(f) brothers and sisters of the deceased (whether of the whole or half-blood);
(g) where any brother or sister survived the deceased, the issue of a predeceased brother or sister;
(h) nephews and nieces of the deceased (whether of the whole or half-blood);
(i) grandparents;
(j) uncles and aunts (whether of the whole or half-blood);
(k) great grandparents;
(l) other next of kin of nearest degree (whether of the whole or half-blood) preferring collaterals to direct lineal ancestors;
(m) the nominee of the State.
(2) The personal representative of any of the persons hereinbefore mentioned (other than the nominee of the State) shall have the same right to a grant as the person whom he represents, subject to sub-rule (8)(b) hereof which provides that life interests be preferred to dead interests.
(3) Where there are conflicting claims for a grant among the members of a class entitled to administration, the matter shall be referred to the Probate Officer and 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 applicants, or, on objection having been made in writing within the said period, to such person as the Court shall select.
(4) If all persons entitled to a grant under the foregoing provisions of this direction shall have been cleared off, a grant may be made to a creditor of the deceased, or, subject to sub-rule (8)(b) hereof, the personal representative of a creditor.
(5)[3] [4] The provisions of the Adoption Acts 1952 to 1988 (as construed in accordance with Section 27(3) of the Status of Children Act 1987)2010 shall apply in determining the title to a grant as they apply to ain the devolution of property on intestacy.
(6) Where the deceased died on or after the 1st January, 1967, domiciled in the Republic of Ireland, leaving a will appointing no executor, or appointing an executor or executors who have been cleared off by death, renunciation, citation or otherwise, the person or persons entitled to a grant of administration with will annexed shall be determined in accordance with the following order of priority, namely:
(a) any residuary legatee or devisee holding in trust for any other person;
(b) any residuary legatee or devisee for life:
(c) any other residuary legatee or devisee or, subject to sub-rule (8)(b) hereof, which provides that live interests be preferred to dead interests, the personal representative of any such residuary legatee or devisee;
(d) any residuary legatee or devisee for life jointly with any ultimate residuary legatee or devisee on the renunciation or consent of the remaining residuary legatees or devisees for life;
(e) where the residue is not in terms wholly disposed of, the matter shall be referred to the Probate Officer, and he may, if he is of opinion that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of an application for a grant, allow a grant to be made to any legatee or devisee entitled to, or to share in, the estate so disposed of, without regard to the person entitled to share in any residue not disposed of by the will;
(f) where the residue is not wholly disposed of by the will, any person (other than a creditor) entitled to a grant in the event of a total intestacy according to the order of priority set out in sub-rules (1) to (5);
(g) any legatee or devisee or any creditor or, subject to sub-rule (8)(b) the personal representative of such person.
(7) Where a gift to any person fails by reason of section 82 of the Succession Act 1965 (which provides that gifts to attesting witnesses or their spouses shall be void) such person shall not have any right to a grant as a beneficiary named in the will but this is without prejudice to his right to a grant in any other capacity.
(8) (a) A grant may be given to any person entitled thereto without notice to other persons entitled in the same class, but the District Registrar may require notice to be given;
(b) Unless the Court or Probate Officer otherwise directs a grant shall be given to a living member of a class entitled thereto in preference to a personal representative of a member of such class who has died after the deceased;
(c) Unless the Court or Probate Officer otherwise directs a grant shall be given to a person not under legal disability in preference to the committee or guardian of a person under a legal disability equally entitled provided that in the case of an application by the committee of a person under a legal disability the Court or Probate Officer shall, before a grant is given, consult the Registrar of Wards of Court.
(9) Where a will is in any language other than the Irish or English language the District Registrar may by order of the Probate Officer admit it to proof in the terms of a translation thereof in the Irish or English language.
(10) Where the only person entitled to the estate of the deceased, whether under a will or on intestacy has assigned his whole interest in the estate, that assignee shall be entitled by order of the Probate Officer to replace the assignor in the order of priority for a grant.
(11) Where a person is entitled to the beneficial interest in the whole of the estate of a deceased, the Probate Officer may order that administration on the renunciation of that person be granted to the person, or jointly to the persons, nominated by him who would be entitled to the estate or to a share in the estate of the person so renouncing if he had died intestate.
(12) Where the parents of a deceased are entitled to the beneficial interest in the whole of the estate of the said deceased, administration may on the renunciation and consent of those parents be granted to the child or jointly to the children nominated by the parents.
(13) No grant of administration shall be made jointly to more than three persons unless the Probate Officer otherwise directs.
(14) When, on the death of the personal representative of a deceased without having fully administered the estate, it is necessary to grant administration of the unadministered estate of the deceased, the rules that shall apply to the ascertainment of the new grantee shall be those that apply on an application for an original grant.
(15) In determining to whom a grant of administration intestate or with will annexed may be made in the case of a person who died prior to the 1st day of January, 1967, the rules heretofore in force applicable to such a case shall be observed.
II. Execution of a will
7. Upon receiving an application for probate or letters of administration with the will annexed, the District Registrar shall inspect the will and see whether by the terms of the attestation clause (if any) it is shown that the statutory provisions in reference to the attestation of wills were in fact complied with.
8. If there be no attestation clause in a document presented for probate or letters of administration with the will annexed or if the attestation clause be insufficient, the District Registrar shall require an affidavit from at least one of the subscribing witnesses, if they or either of them be living, to prove that the statutory provisions in reference to the execution of wills were in fact complied with. A note signed by the District Registrar shall be inserted on the engrossed copy will annexed to the probate or administration to the effect that affidavits of due execution, or as the case may be, have been filed.
9. If, on perusing such affidavits as are filed it appears to the District Registrar that the statutory provisions were not complied with, the District Registrar shall refuse probate of the purported will.
10. If both the subscribing witnesses are dead, or if, from other circumstances, no affidavit can be obtained from either of them, resort shall be had to other persons (if any) who may have been present at the execution of the will, but if no affidavit of any such other person can be obtained, evidence on affidavit shall be procured of the fact and of the handwriting of the deceased and the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of due execution.
11. In any case in which a will apparently duly executed has been produced for probate or for administration with the will annexed, probate of any former will, or administration with any former will annexed, or administration to the deceased, as having died intestate shall not be granted by a District Registrar without an order of the Court, or of the Probate Officer, showing that the last will is not entitled to probate. In the absence of such order the District Registrar shall communicate with the Probate Officer.
III. Interlineations and alterations
12. Interlineations and alterations are invalid unless they existed in the will prior to its execution, or, if made afterwards, unless they have been executed and attested in the mode required by law, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto.
13. Where interlineations and alterations appear in the will (unless duly executed, or recited in, or otherwise identified by the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution shall be filed, except when the alterations are of but small importance and are evidenced by the initials of the attesting witnesses.
IV. Erasures and obliterations
14. Erasures and obliterations are not to prevail unless proved to have existed in the will prior to its execution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been rendered valid by the re-execution of the will or by the subsequent execution of a codicil thereto. If no satisfactory evidence can be adduced as to the time when such erasures and obliterations were made, and the words erased or obliterated be not entirely effaced, but can upon inspection of the paper be ascertained, they must form part of the probate. In every case of the words having been erased or obliterated which might have been of importance, an affidavit shall be required.
V. Documents referred to in a will
15. If a will contains a reference to any deed, paper, memorandum or other document, of such a nature as to raise a question whether it ought, or ought not, to form a constituent part of the will, such deed, paper, memorandum or other document shall be produced, with a view to ascertaining whether it be entitled to probate; and, if not produced, its non-production shall be accounted for.
16. No deed, paper, memorandum or other document shall be admitted to probate as part of a will unless it was in existence at the time when the will was executed and is therein referred to.
VI. Appearance of the paper
17. If there are any vestiges of sealing-wax or wafers, or other marks upon the testamentary papers, leading to the inference that a paper, memorandum or other document has been annexed or attached to the same, such paper, memorandum or other document shall be produced and, if not produced, its non-production shall be accounted for.
VII. Pencil writing on wills
18. When a will is written in pencil or when any pencil writing appears on a will, script or other document filed in a District Registry, a facsimile copy of the will, script or other document or the pages or sheets thereof containing the pencil writing, shall also be filed, with those portions written in red ink which appear in pencil in the original.
VIII. Doubtful cases
19. In all cases in which for any cause it is doubtful whether any will is entitled to probate, and in all cases in which a question arises whether any alteration, interlineation, erasure or obliteration ought to prevail, or whether any deed, paper, memorandum or other document ought to form part of a will, or if any doubt arises in consequence of the appearance of the paper, or on any other point, the District Registrar shall consult the Probate Officer, who may take the directions of the Court or require the parties to bring the matter before the Court.
20. The right of parties to letters of administration with the will annexed, and letters of administration with the will annexed de bonis non depends so entirely upon the circumstances of each particular case taken in connection with the wording of the will that whenever the right of the party applying is at all questionable, a statement of the case, accompanied by a copy of the will, shall be transmitted to the Probate Officer who will advise thereon.
IX. Application by trust corporation
21. When a trust corporation makes an application for a grant the affidavit necessary to lead to a grant shall be sworn by an official authorised to do so on its behalf.
22. The authorisation of an official to swear such affidavit shall, in the case of a trust corporation having a board of governors, board of directors or other governing body, be made by resolution of such board of governors, board of directors or other governing body, and in every other case shall be made by resolution of the trust corporation.
23. With every such application by a trust corporation there shall be lodged a copy (sealed with the seal of such trust corporation) of the resolution authorising an official to swear the affidavit necessary to obtain the grant. Where such a copy as aforesaid has already been lodged with an earlier application it shall thereafter be sufficient to lodge a photostat of such copy.
X. Limited administration
24. Limited administration shall not be granted unless every person entitled to the general grant has consented or renounced, or has been cited and failed to appear, unless the Court or Probate Officer otherwise directs: in this rule the word “limited” means limited to part only of the assets or estate of the deceased.
25. No person entitled to a general grant of administration of the estate of the deceased shall be permitted to take a limited grant, except by order of the Court.
XI. Administration under the Succession Act 1965
26. Whenever the Court under the Succession Act 1965, section 27, appoints as administrator someone other than a person who would otherwise be entitled to the grant the fact that an order under the section has been made shall be stated in the oath of the administrator, in the grant of administration and in the administration bond.
XII. Grant to an Attorney
27. In the case of a person residing out of or about to leave the jurisdiction of the Court, or who, in the opinion of the Court or the Probate Officer is suffering from a severe continuing physical disability, administration, or administration with the will annexed, may be granted to his attorney acting under a power of attorney.
XIII. Grant to a Guardian
28. A grant of administration may be made to the guardian of an infant for the infant’s use.
29. In a case where any infant has not a testamentary guardian or a guardian appointed by the Court, or by or under the provisions of the Guardianship of Infants Act 1964, a guardian shall be assigned by order of the Court or of the Probate Officer. The application for such an order shall be grounded on an affidavit showing as nearly as possible the amount of the assets, the age of the infant and with whom he resides, that the proposed guardian is either the nearest relation of the infant or that the nearest relation has renounced his right to the guardianship, or is consenting to the assignment of the proposed guardian, and that such proposed guardian is ready to undertake the guardianship. On such application the Court or Probate Officer shall have regard to the expressed wishes of any infant over the age of twelve years.
XIV. Administrator’s oath
30. (1) The oath of an administrator shall be so worded as to clear off all persons having a prior right to the grant. Where there are prior interests the grant shall show on its face how they have been cleared off.
(2) In an administration of a special character, the statement in the oath and the letters of administration shall be framed in accordance with the facts of the case.
(3) The value of the property stated in the administrator’s oath shall be verified by other affidavits if required by a District Registrar.
XV. Administration bond
31. Administration bonds shall be attested by the Probate Officer or Assistant Probate Officer or District Registrar, or by a commissioner or other person now or hereafter to be authorised to take affidavits, but in no case are they to be attested by the solicitor or agent of the party who executes them. The signature of the administrator to such a bond, if not taken in the Probate Office or District Registry, shall be attested by the same person who administers the oath to such administrator unless the Court or the Probate Officer or District Registrar shall otherwise order.
32. A District Registrar is to take care as far as possible that the sureties to administration bonds are responsible persons.
33. The sureties to administration bonds shall justify in the gross amount at which the estate of the deceased is sworn unless the Court or the Probate Officer or District Registrar shall otherwise order.
34. The form of administration bond prescribed by the President of the High Court from time to time shall be used in the case of estates of persons dying on or after the 1st January, 1967. The form set out in Appendix Q, Part II, is the form prescribed at the date of the making of these rules. In the case of estates of persons dying before the 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.
XVI. Issue of grant
35. No probate or letters of administration shall issue until after the lapse of fourteen days from the death of the deceased, unless by order of the Court or of the Probate Officer.
36. All probates or letters of administration issued from a District Registry shall be filled up there; and any former grant which has been revoked or which has ceased shall be cleared off therein.
37. Notices of application for grants of probate or administration with will annexed transmitted by a District Registrar to the Probate Officer shall contain in addition to the particulars specified in the Succession Act 1965, section 36, an extract of the words of the will by which the applicant has been appointed executor, or the words (if any) upon which he founds his claim to such administration, and shall show the day upon which the application is made.
38. Notice of application shall set forth the names and interests of all persons who, according to the practice of the Court, would have a prior right to the applicant, and shall show how such prior right is cleared off. In case the persons, or any of them, shall have renounced, the date of such renunciation shall be stated. If the applicant claims as the representative of another person, the date and particulars of the grant to him in the estate of such other person shall be stated.
39. The oath of an executor or administrator shall be subscribed and sworn as an affidavit and filed in the appropriate District Registry.
40. The draft oath to lead to grants of special or limited probate, or of administration intestate or with will annexed, shall be transmitted by the District Registrar to the Probate Officer to be settled; and no special or limited grant shall issue until the draft oath to lead to the same has been settled by the Probate Officer.
41. A District Registrar may, in cases where he deems it necessary, require proof, in addition to the oath of the executor or administrator, of the identity of the deceased, or of the party applying for the grant.
42. Every will or copy of a will exhibited in the oath of an executor or administrator with will annexed shall be marked by such executor or administrator and by the person before whom he is sworn. Such marking shall be made on the back of the will or elsewhere so as to be clearly distinguishable from the will itself and its attestation.
XVII. Renunciation
43. No person who renounces probate of a will or letters of administration of the estate of a deceased person in one character, shall be allowed to obtain representation to the same deceased in another character, unless the Court shall otherwise order.
XVIII. Revocation and alteration of grant
44. Grants of probate or letters of administration shall be revoked only by order of the Court or of the Probate Officer.
45. No grant of probate or letters of administration shall be altered by a District Registrar, without an order of the Probate Officer having been previously obtained. In case the name of the testator or intestate or the date of death requires alteration, notice of an application to amend shall be given, and the alteration ordered shall not be made by a District Registrar until the usual certificate on such notice has been received from the Probate Officer.
XIX. Affidavits
46. Order 40, Part I, shall apply to affidavits filed or used in District Registries.
47. In every case where an affidavit is made by a subscribing witness to a will for the purpose of proving the execution thereof, such subscribing witness shall depose as to the mode in which the said will was executed and attested.
XX. Caveats
48. Any person intending to oppose the issuing of a grant of probate or letters of administration shall, either personally or by his solicitor, lodge a caveat in the Probate Office or in the appropriate District Registry.
49. A caveat shall bear date of the day it is lodged, and shall remain in force for the space of six months only, and then expire and be of no effect; but caveats may be renewed from time to time.
50.[5] Every caveat shall state the name and address of the person on whose behalf the same is lodged, and the registered place of business of the solicitor lodging the same, or if there be no solicitor, an address for service at which the caveat can be warned and where the case is so, the caveat shall state that it is lodged only with a view to seeing that the security is sufficient.
51. Any person who shall knowingly lodge, or cause to be lodged, in a District Registry, a caveat in the name of a fictitious person, or with a false address of the person on whose behalf it purports to be lodged, shall be deemed guilty of a contempt of Court.
52. A District Registrar shall, immediately upon a caveat being lodged, send a copy thereof to the Probate Officer, and also to the Registrar of any other district in which it is alleged the deceased resided at the time of his death, or in which he is known to have a fixed place of abode at the time of his death, and shall state the day on which the same was lodged.
53. No caveat shall affect any grant made on the day on which the caveat has been lodged, or on the day on which notice is received of a caveat having been lodged in a District Registry.
54. Caveats shall be warned from the Probate Office only.
55. After a caveat has been lodged, a District Registrar shall not proceed with the grant of probate or administration to which it relates until it has expired or been subducted, or until he has received notice from the Probate Office that the caveat has been warned and no appearance entered or that the contentious proceedings consequent on the caveat have terminated.
XXI. Citations and subpoenas
56. Citations and subpoenas shall be issued from the Probate Office only.
57. No grant shall issue from a District Registry, after a citation, without the production of an attested copy of the order of the Court or of the Probate Officer authorising the same.
XXII. Blind and illiterate testator
58. A District Registrar shall not allow probate of the will or administration of the will annexed of any blind or illiterate person to issue unless he is satisfied by evidence on affidavit that the will was read over to the testator before its execution or that the testator had at such time knowledge of its contents. Where such information is not forthcoming, the District Registrar shall communicate with the Probate Officer.
XXIII. Alteration in grant
59. Whenever any alteration is made in a grant, or a renunciation is filed, notice of such alteration or renunciation shall without delay be forwarded by the District Registrar to the Probate Officer, but no fee shall be payable in respect of any such notice.
XXIV. List of grants
60. The lists of grants of probate and administration required to be furnished by a District Registrar under the Succession Act 1965, Section 36, shall contain the name of the District Registry in which such grant was made and the first name and surname of each testator and intestate.
61. Every such list of grants forwarded by a District Registrar shall be accompanied by a copy of the record of each grant mentioned in it. The record, besides stating the necessary particulars of the grant to which it refers, shall contain the place and date of death of the testator or intestate, the names and description of each executor or administrator, the date of each grant and the sum under which the value of the estate is sworn.
62. Within four days from the end of each month each District Registrar shall forward to the Probate Office a return arranged alphabetically of all grants of probate or letters of administration passed at his District Registry during the preceding month.
XXV. Notice to Attorney General
63.[6] In all cases where application is made for letters of administration (intestate or with a Will by which all the estate is not disposed of annexed) of the estate of a person dying or presumed to have died without known relation, notice of such application shall be given to the Attorney General, in order that he may determine whether it will be expedient to intervene on the part of the State; and no grant is to be issued until he has signified the course it will be proper to take.
XXVI. Transmission of papers
64. When an application is made to the Court, in relation to an application for a grant at a District Registry, the District Registrar shall transmit all relevant original papers and documents to the Probate Office; and the same, after the directions of the Court have been taken, shall on the application of the parties (unless the Court shall otherwise direct) be returned to the District Registrar, together with an attested copy of the order of the Court.
65. Original papers shall be forwarded to the Probate Office whenever an inspection of them is necessary to enable the Probate Officer to answer the questions submitted to him by a District Registrar. Papers and other documents may be transmitted by a District Registrar to the Probate Officer and by the Probate Officer to a District Registrar by registered post.
XXVII. Copies of wills
66. Copies of wills to be annexed to the probate or letters of administration shall be written in a legible hand or printed or typewritten or, in suitable cases, photocopied as the District Registrar shall direct.
67. Copies of wills and other testamentary documents will not be collated with the originals unless specifically required. Every copy required to be certified shall be certified under the hand of the District Registrar.
68. The seal of the Court shall not be affixed to any copy of a will or other document, unless the same has been attested and certified.
XXVIII. Production of documents
69. (1) If a will or other document filed in a District Registry is required to be produced at any other place, application shall be made for that purpose in sufficient time to allow for making and examining a copy of such will or other document.
(2) On the making of such an application, there shall (unless the Court or the Probate Officer otherwise directs) be made a copy of such will or other document, which copy shall be examined with the original, and such examined copy shall be deposited in place of the original pending its return.
(3) Where the will or other document is required for production in the High Court on Circuit or in the Circuit Court such will or other document may by direction of the District Registrar be sent by registered post to the appropriate County Registrar.
XXIX. Sureties
70. No practising solicitor, or clerk or apprentice to a practising solicitor shall be admitted as surety to an administration bond, without the leave of the Court or the Probate Officer.
XXX. Personal application for grant
71. Persons wishing to obtain grants of probate or letters of administration without the intervention of a solicitor shall apply at a District Registry in person, and not by letter.
72. No such application will be received through an agent.
73. A personal applicant shall not be attended by another person acting or appearing to act as his adviser, unless the District Registrar otherwise permits.
74. An application which has in the first instance been made through a solicitor shall not afterwards be treated as a personal application, unless the Probate Officer otherwise directs.
75. An application for a grant of probate or administration in a case which has already been before the Court (on motion or otherwise) shall not be entertained as a personal application, but shall be made through a solicitor, unless the Probate Officer otherwise directs.
76. Whenever it becomes necessary in the course of a personal application to obtain the directions of the Court, the application shall not be proceeded with until such directions have been obtained.
77. The papers necessary to lead to the grant shall be prepared and sworn in the District Registry. An applicant may bring such papers, or any of them, filled up, and if correct they may be received and if already sworn shall be resworn. Any papers once received in a District Registry shall not be given out unless under special circumstances by permission of the Probate Officer.
78. All administration bonds, in cases of personal application, are to be executed in the District Registry making the grant, unless otherwise permitted by the District Registrar.
79. Engrossments of wills and testamentary papers shall be made in the District Registry from which the grant is to issue.
80. Every applicant for a grant of probate or letters of administration shall give under his hand a schedule of the property to be affected by the grant.
81. Legal advice shall not be given to applicants, either with respect to the property to be included in the schedule, or upon any other matter connected with the application, and a District Registrar shall only be held responsible for embodying in a proper form the instructions given to him, but he shall, as far as practicable, assist applicants by giving them information and directions as to the course which they must pursue.
82. A receipt or acknowledgement of each application shall be handed to the applicant, and the production of such receipt shall be required of the person who intends to obtain the grant when completed.
XXXI. Miscellaneous
83. Every applicant for a grant of probate or letters of administration shall produce a certificate of death or burial of the deceased, or give a satisfactory reason for the non-production thereof.
84. This order applies equally to codicils as to wills.
85.[7] The certificate required to be given by the proper officer of the Court, under the Customs and Inland Revenue Act 1881, Section 30, as amended by the Capital Acquisitions Tax Consolidation Act 2003, for the purposes of the Finance Act 1894, shall be in such form as the Probate Officer shall from time to time prescribe according to the circumstances of the case.
86. In the case of the estates of persons dying on or after the 1st January, 1967, the forms in Appendix Q, Part 1, shall, where applicable, be used. In the case of the estates of persons dying before the 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.
[1] Order 80 rules 6(1)(c) and 6(1)(e) substituted by SI 20 of 1989, effective 13 February 1989.
[2] Order 80 rules 6(1)(a) and 6(1)(b) amended by SI 348 of 2011, effective 31 July 2011. SI 348 of 2011 inserted references to “surviving civil partner.”
[3] Order 80 rule 6(5) substituted by SI 20 of 1989, effective 13 February 1989.
[4] Order 80 rule 6(5) substituted by SI 469 of 2015, effective 25 November 2015.
[5] Order 80 rule 50 amended by SI 307 of 2013, effective 26 August 2013. This deleted the words “(within the jurisdiction)” following “an address for service”.
[6] Order 80 rule 63 substituted by SI 20 of 1989, effective 13 February 1989.
[7] Order 80 rule 85 amended by schedule 3 of the Capital Acquisitions Tax Consolidation Act 2003, effective 21 February 2003. This substituted “Capital Acquisitions Tax Act 1976” with “Capital Acquisitions Tax Consolidation Act 2003”.
Cases
In the Goods of James Cray, deceased
The High Court (Probate)
18 November 1966
[1967] 101 I.L.T.R 71
O’Keeffe P
11 and 18 November, 1966
O’Keeffe, P.:
I am satisfied that the will was in existence at the date of the death of the deceased. It is clear that a will form must have contained a revocation form at least. I have directed counsel to give the synthetic will the fullest form it must at least have contained. This being done I give liberty to apply for a grant of administration with the synthetic copy settled by counsel annexed.
Representation
Lynn, Deceased
High Court of Justice.
King’s Bench Division (Probate).
23 November 1917
[1918] 52 I.L.T.R 20
Madden J.
Nov. 9, 23, 1917
This was an ex parte application for liberty to take out a grant of letters of administration with the will annexed of the personal estate of William Lynn, late of Dungiven, County Londonderry, deceased. It appeared from the affidavit of John Lynn, son of said William Lynn, that the deceased had made his last will in 1882, and had by said will bequeathed all his property, consisting chiefly of a farm of land, to his son John Lynn, subject to payment of a pecuniary legacy to testator’s sister. All the other children of testator had gone to America prior to his death. Testator died in 1887. John Lynn had entered into possession of the farm in 1887, and had remained in possession since that date. The lands were now being sold by John Lynn, and proof of the will was necessary for the purpose of making title. In 1889 John Lynn, for the purpose of raising a loan from a loan bank in Londondrry, had deposited the will and some other papers with the said bank. On the repayment of the loan John Lynn omitted to get possession of the will. The loan bank subsequently transferred its business to another company, and the will had been lost. Careful search had been made for it, but no trace of it could be discovered. The witnesses were both dead, and the only person alive who had seen seen the will and knew its contents was the said John Lynn. The will appeared to be properly executed, but proof of its execution was impossible, as the witnesses were long since dead, and there was no person who could prove their handwriting. The only person alive who had seen the will and knew its contents was the said John Lynn.
M. D. Begley moved for an order that the applicant be at liberty to take out a grant of letters of administration with the said lost will annexed of the personal estate of the above deceased. He contended that the contents of the will might be proved by any person who had seen the will, and could swear to its contents: Sugden v. Lord St. Leonards, 1 P. D. 154. The will had appeared to be duly executed. It had been acted upon for many years. The witnesses were dead, and it would be impossible to give formal evidence of execution or proof of their handwriting, as the will had been lost. A will thirty years old proves itself. He cited:—The Queen v. Fordingbridge, 27 L. J. M. C. 290, at p. 293; Doe v. Spillsbury, 4 A. & E. 1, at p. 19; Wynne v. Tyrwhitt, 4 B. & Ald. 376; The Queen v. St. Giles Camberwell, 1 E. & B. 642; Man v. Rickets, 7 Beav. 93; Burgoyne v. Showler, 3 N. of C. 201.
Madden, J., said that the case differed from Lord St. Leonards’ Case, as in that case the execution of the will was admitted, and the only question was what were the contents of the will. Here there was no evidence of execution of the will other than the statement contained in the affidavit of the applicant, that the will appeared to be signed by testator and two witnesses. The witnesses being dead and the will lost, it was impossible to prove their handwriting. He directed that advertisements be published for the lost will, and also directed that an affidavit be filed with reference to whether a legacy in the will to a sister of testator had been paid, and adjourned the application pending the result of these inquiries. The case coming before the court on November 23, an affidavit was filed to the effect that no replies were forthcoming to the advertisements, and that testator’s sister referred to in the will, had predeceased him. His Lordship then made the order in the terms sought.
In the Goods of Jemima Moore, deceased
King’s Bench Division (Probate)
8 June 1917
[1917] 51 I.L.T.R 136
Madden J.
This was a motion brought by Maria Moffat to establish so much as was unrevoked of the last will of deceased, and for a grant of letters of administration with the will annexed of deceased. It appeared from the affidavits that early in 1916 the Rev. Samuel McKee drew up a will for deceased, wherein she bequeathed her farm in Tullybeety and the stock, crop and chattels thereon to her four daughters—Maria Moffat (then Maria Moore), Caroline Lamlie, Minnie Hewitt, and Jemima Moore, junior. By the latter part of her will testatrix bequeathed her farm in Corricklongfield to her daughter, Maria. The will was duly executed and attested. Jemima Moore died on December 17, 1916. In November, 1916, last, a month before deceased died, she cut her will into two pieces by a clear cut across the face of it, and burnt the upper portion, leaving intact the words:— “I also bequeath to my daughter, Maria Moore, absolutely the farm I hold in Carricklongfield,” with the attestation clause and the signatures of deceased and the two witnesses. All the parties interested in the estate consented to the matter being dealt with on a motion. The affidavits supporting the motion showed that deceased had indicated an intention of revoking the earlier part of her will.
A. B. Babington moved to have so much as remained of the will established and for a grant of letters of administration with the will annexed to Maria Moffat. He submitted this was merely a case of partial revocation. There was evidence apart from the cutting of the will that deceased only intended it as such. Such a partial revocation may be good in law, and does not affect the validity of the unrevoked part of the will. The bequest to Maria Moffat is good, notwithstanding the mutilation of the will.
Authorities cited:—
In the Goods of Francis Lambert, 1 N. C. 131;
In the Goods of William Cooke, 5 N. C. 390;
In the Goods of Maley, 12 P. D. 134.
Madden, J., said.
This was clearly a case in which deceased intended to and did in fact revoke the earlier part of her will. It was clear she also intended to leave the remainder of her will intact. Such a revocation is good in law. Cases of partial and conditional revocation are frequent enough, but the facts in this case are somewhat peculiar. The document, though mutilated, was valid as the last will of deceased, and would be established accordingly. The order would provide that Mrs. Moffat be at liberty to apply for a grant of letters of administration with the will annexed of the personal estate of deceased.
In the Goods of Brennan, deceased
Probate and Matrimonial Division.
25 October 1887
[1887] 21 I.L.T.R 47
Warren J.
It is the rule, where probate is given of the contents of a lost will, to insert in the grant a provision that it “shall only take effect till the original will is found and lodged in the registry.” Such grant is sufficient to confer the authority of an executor, and gives a good title to dispose of the property by sale or mortgage.
The facts of the case were as follows:—Bernard Brennan died at Trim on the 10th day of June, 1877, having previously made his will on the 1st of June, which was prepared for him by one Dr. O’Reilly, and executed in presence of the Rev. John Duncan, P.P., and Richard Duigenan. After his death the document was sent to a solicitor in Dublin for the purpose of obtaining probate: it was subsequently lost. By his will the testator left his property, consisting of houses in the town of Trim and other assets, to his two daughters, Elizabeth Duigenan and Rosanna Davis. Administration of a copy of the will had been granted, and in the grant there was a clause to the effect that it should only be valid “until the original will should be found and lodged in the registry.” An application was now made to the Court for an order amending the grant of administration issued to Elizabeth Duigenan and Rosanna Davis, an objection having been made as to the validity of their title to sell or mortgage the property.
Cooper, in support of the motion.—Our object is to deal with the property by sale or mortgage. The objection has been made that the insertion of the clause limiting the grant “until the original will be found and lodged” renders the title valueless. There does not appear to be any authority for inserting these words though it appears to be the practice of the probate office. A grant of administration qualified in this way is useless to us.
Warren, J.
[The administration you have confers a good title.]
An objection has been taken on the grounds we have stated. Consequently we come to ask that the words be omitted. We are not in a position to deal with the property. We never would have applied if we had known that the administration should be qualified in this way.
Warren, J.—You have a perfectly valid title, and I cannot possibly order the words to be omitted. It is the invariable rule where probate is given of the contents of a lost will to insert in the grant words providing that it shall only take effect till the original will is found and lodged in the registry; but your title is perfectly good. There may be a will brought in afterwards, but it does not touch the title, and the grant confers every proof until the original will is brought into the registry, if it ever should be found. It does not affect your title in the slightest degree, for your clients have all the authority of executors, and the only thing that can terminate such authority is the bringing in of the original will. The finding of it would in no way touch your authority.
In the Goods of Vaughan, Deceased
Court of Probate.
29 November 1875
[1875] 9 I.L.T.R 222
Warren J.
Nov. 15, 29, 1875
Warren, J. (after stating the facts), said:—According to the common practice of the court, Mr. Morgan, as guardian, is entitled to a general administration, during minority, but, I can find no trace in the books of such a limited grant as that now desired being made to a person entitled to a general grant. I do not approve of innovations in the practice of the court, and I think such a grant as is now required would be an inconvenient precedent. In this case there ought to be a general administration of Julia Vaughan, to take charge of her leasehold property and chattels personal, to answer the demands of creditors if she owed debts, and to satisfy the claims of the Inland Revenue, but the proposed grant would manifestly tend to frustrate these purposes. It is suggested that the applicant cannot give justifying security; but in all proper cases the court relaxes its rule, and provides for the security of the assets in some other way—for instance, by impounding the grant, and allowing it to be used as circumstances may require at its own discretion, or under the sanction of the Court of Chancery; and if a proper application shall be made in this case, I do not apprehend that any difficulty will arise. It is the clear duty of this court to grant such administrations as shall enable other courts to dispense justice, but I deny that it is the duty of this court ex debito justitice to make limited grants in a novel and an inconvenient form, because any other court may have given liberty to apply, when the court is prepared to grant administration in a form adequate beyond all question for the purposes of justice.
In the Matter of the Estate of Thomas Delahunty
, Deceased, Late of Barnacole, Mooncoin, County Kilkenny, Farmer and In the Matter of the Succession Act, 1965 and In the Matter of an Application by Philip Kinsella of Cool Na Gower, Dungarvin, County Waterford
[2021] IEHC 657
High Court [Approved]
14 October 2021
unreported
[2021] IEHC 657
Ms. Justice Butler
October 14, 2021
JUDGMENT
Introduction
1. This application is brought by Philip Kinsella, nephew of the late Thomas Delahunty (“the deceased”) seeking to admit a document to probate purporting to be a carbon copy of the last will and testament of the deceased who died on the 2nd March, 2015, aged 86 years. The document is dated 20th May, 1980 and the evidence suggests that the original, which was retained by the deceased’s solicitor, was lost when the solicitor’s office was broken into and a safe removed from the premises in June, 1997. Neither the safe nor its contents were ever recovered. Although it is not strictly relevant to the legal issues, at the time of the death of the deceased, his estate was valued at just under €1.5 million which represents a significant benefit to those who might be entitled to it. If the copy will is admitted to probate, the applicant would be the main beneficiary. If, on the other hand the copy will is not admitted to probate, then the deceased will be treated as having died intestate and his sister, a large number of nieces and nephews and, potentially, the estate of his late wife all stand to benefit.
2. Although some of those potentially entitled on an intestacy have consented to the application, it is opposed by various other members of the deceased’s family including his sister, Ms. Bridget O’Flynn and the personal representatives of the estate of his widow, she having died some months after him in October, 2015. A number of grounds are advanced as to why the copy will should not be admitted to probate. These include an absence of evidence as to the execution of the will since the carbon copy is not signed and the attesting witnesses are now deceased; an absence of evidence that the deceased knew and approved of the contents of the will and an assertion that a failure by the deceased to respond to correspondence from his solicitor after the theft in 1997 inviting him to attend to prepare another will amounts in effect to a form of revocation.
Factual Background
3. The background to the making of the will is a little complex. As of 1970 the deceased was a bachelor farmer contemplating marriage. He was, at the time, 42 years of age and his bride to be was a few years older. In contemplation of that marriage, the parties entered into a marriage settlement on 5th October, 1970. From its terms, it seems that the settlement was intended as a renunciation by the deceased’s wife of her legal right share of his property to which she would be entitled on his death under s. 113 of the Succession Act, 1965. The settlement established a trust of which the deceased’s brothers John and Philip were named the trustees. The deceased transferred certain lands and chattels into the trust to be held in trust for himself for life and after his death on terms which varied depending on whether he and his wife had children. As it transpired, although married for 45 years, the deceased and his wife did not have children. Consequently, the relevant terms of the settlement are those which were to apply in the event that the deceased predeceased his wife without issue. In those circumstances, the deceased’s wife became entitled to payment of a cash settlement which was described as being “ in full discharge of all claims and demands which she might have against the Real and Personal estate ” of the deceased. The settlement also provided that the widow would “ thereupon leave the premises and have no further claims thereon” . Subject to this payment which was to be raised out of the trust property, the deceased could appoint beneficiaries of the trust by deed or by will. In default of such appointment, the trust property was to pass to the persons who would be entitled on a distribution on intestacy under the Succession Act, 1965 “as if the settlor had died intestate and without having married ”.
4. The marriage settlement was prepared on the deceased’s behalf by his solicitor Thomas Kiersey, of Waterford. A decade later, the deceased returned to Mr. Kiersey and gave instructions in relation to the drawing up of a will. Those instructions are contained in a handwritten note made by Mr. Kiersey dated 20th April, 1980. Whilst the court must be cautious about imputing any particular intention to the deceased, it is notable that, at this point, both the deceased and his wife were in their fifties and it must have been apparent that they were now highly unlikely to have any children. It also seems that the deceased’s marriage was a happy one as the effect of the instructions given was twofold. Firstly, the deceased proposed to give a benefit to his wife under his will significantly in excess of that which had been agreed under the marriage settlement. On his death, she was to receive an additional cash payment, an annuity and a right of residence in the dwelling house on his lands for life. Secondly, the residue of his estate including his lands and farm were left to his nephew, the applicant in this application. Those instructions were formalised into a typewritten draft will to which handwritten amendments were made by Mr. Kiersey; two further typewritten drafts were prepared to which further handwritten amendments were made by Mr. Kiersey before, the applicant contends, a final version of the will was signed and witnessed. Thereafter, the original will was retained by the solicitor in his safe and, it is claimed, a copy given to the deceased.
5. There matters stood until the evening of the 18th/19th June, 1997 when a burglary took place at the offices of T. Kiersey & Co. Solicitors which was, by then, located at Catherine Street, Waterford. By this time, Mr. Kiersey had retired and his daughter, Gillian Kiersey, had taken over as principal of the firm. Amongst the items stolen was the office safe and its contents which included the originals of wills and other documents. The matter was reported to the Gardaí but neither the safe nor its contents were recovered. Ms. Kiersey’s firm wrote to the various clients affected by the theft asking them to make contact with the office. The records indicate that a letter was sent to the deceased on the 25th June, 1997. No copy of this letter is available, so the court is not aware of its precise terms. It seems that the deceased did not make contact with T. Kiersey & Co. in response to this letter or in relation to his will either then or at a later stage when he had cause to attend the firm in connection with other matters arising from the death of his brother in 2006.
6. The deceased died in March, 2015 and his wife died some five months later in October, 2015. A nephew of the deceased, James Delahunty, found the carbon copy will in a box amongst personal papers belonging to the deceased in an attic space above the kitchen at the deceased’s house in May, 2015. There is no direct evidence from Mr. Delahunty in relation to the finding of the copy will. There is however the evidence of Ms. Gillian Kiersey to whose office he brought the document and the account he gave to her of finding it is confirmed in a letter from Mr. Delahunty’s solicitors. Ms. Kiersey conducted extensive searches in her offices seeking to locate the original will. She wrote to 39 firms of solicitors in the Waterford and Kilkenny area asking if those firms were in possession either of the original 1980 will or any later will made by the deceased. She also arranged for the publication of two advertisements, one in the Law Society Gazette and one in a national newspaper asking anyone in possession of the deceased’s will to contact her. Those steps did not result in the original or any later will of the deceased being produced.
Legal Issues arising
7. Based on these facts, two main issues arise. The first is whether the available evidence is sufficient for the court to be satisfied that an original will in the same terms as the carbon copy which it is sought to admit to probate was duly executed by the deceased. The second is whether an inference should be drawn from the particular circumstances in which the deceased did not attend at his solicitor’s office to “ re-do ” his will, that the will was revoked by him. An additional issue is raised by the estate of the deceased’s widow in written submissions filed after the hearing of the motion querying whether the evidence is sufficient to allow the court to conclude that the deceased was aware of and approved the contents of the will. This was not the subject of argument before the court and the applicant did not have an opportunity to respond to the point. In light of the facts I do not regard this as being a point of particular substance, but I will address it briefly nonetheless.
8. The requirements of due execution of a will under s. 78 of the Succession Act, 1965 are well known. The will must be signed at its foot or end by the testator and the testator’s signature must be witnessed or acknowledged by two persons in each other’s presence both of whom must also sign the will. The difficulty in this case arises because the carbon copy document before the court does not contain any signatures. Instead, it has typed into it the name of the deceased and, beneath an attestation clause, the names Thomas Kiersey, solicitor, and Mary Banks, both of whom are stated to be of 40 Barronstrand Street, Waterford (the then-address of Mr Kiersey’s office). Both of these witnesses are now dead and, consequently, are unable to provide evidence of due execution of the will. The parties opposing the admission of the carbon copy to probate make the case that there is no evidence of the proper execution or attestation of the will.
Presumption of Regularity – Case Law
9. The applicant relies on the maxim omnia praesumuntur rite esse acta (all things are presumed to have been done correctly), also known as the presumption of regularity, to the effect that a document which on its face appears to be in order should be presumed to have been regularly executed unless the evidence suggests otherwise. Personally, I dislike resortto Latin maxims the meaning of which is no longer immediately apparent to a generation of lawyers who came through the educational system when, not only was Latin no longer a compulsory subject, but it was one which was not available in most Irish schools. Consequently, for the balance of this discussion, I will refer to the presumption of regularity. This makes it clearer that, like any presumption, it requires sufficient evidence of a state of facts to raise it and it can be rebutted by sufficient contrary evidence. There is, of course, still scope for dispute as to what standard of evidence is sufficient in either case and whether that evidence has been adduced in the particular case.
10. Before looking at the main authorities relied on by the parties on this point, it may be useful to look at two older authorities considering the nature of the presumption and the circumstances in which it might be applied. The earlier of the two cases is Harris v. Knight(1890) 15 P.D. 170 in which Lindley L.J. said (at p. 179):-
“The maxim ‘Omnia praesumuntur rite esse acta’, is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.”
I think that this exposition usefully encapsulates the essence of the presumption. It allows a court to close an evidential gap regarding the formalities of an act which, on the available evidence, the court is otherwise satisfied was properly done. However, the presumption cannot be relied on if doing so would be contrary to the evidence which is available. Thus, it operates in the absence of certain evidence but not to displace evidence which is actually there.
11. More than half a century later, Davitt J. applied the maxim in In the Goods of McLean[1950] IR 180 in circumstances where a will appeared to be duly executed and the signatures of the testator and witnesses were confirmed but neither witnesses had a recollection of having witnessed the testator’s signature nor of having signed any document in each other’s presence. In considering whether the maxim should be applied, Davitt J. stated at p. 184:-
“The issue, whether or not a particular will has or has not been duly executed, is usually a pure question of fact. It seems to me that all these cases, looked at broadly, merely illustrate the principle that this question, like any other question of fact, should be decided on the balance of probability after all the evidence, circumstantial as well as direct, has been duly weighed and all the relevant circumstances have been taken into account….
In the illustration given the question of due execution is decided on circumstantial evidence only, and there is no conflict either of testimony or probability. In many cases the question has to be decided on circumstantial evidence only and there is a conflict of probability. In many other cases the question has to be decided only on the testimony of the attesting witnesses. Here there may or may not be a conflict of testimony. In many other cases, again, there may be both direct and circumstantial evidence to be considered and there may be a conflict both of testimony and probability. In all cases, however, whether simple or complicated and whether the probabilities be all on one side or divided, the principle to be applied is the same; the question must be decided on the balance of probability. It seems to me that it can make no difference whether the process of decision is called “applying the principle of the balance of probability” or “applying the maxim “omnia praesumuntur rite esse acta”.”
12. It is interesting that both of these observations frame the application of the principle very much in terms of whether the available evidence allows an inference to be drawn that an act was completed in accordance with the requisite formalities. Davitt J.’s comments, in particular, underscore the fact that the evidence relied on will frequently be circumstantial. This is unsurprising as if direct evidence of the execution of the will were available, the need to rely on a presumption is unlikely to arise. I mention this because the submissions made on behalf of those opposing admission of the copy to probate focus heavily on the absence of direct evidence of execution of the will. However, the absence of direct evidence is not, in my view, determinative of the question of whether the available evidence, be it indirect, circumstantial or documentary, allows an inference to be drawn that the will was properly executed.
13. Both sides rely on the decision of the Supreme Court in Clarke v. Early[1980] IR 223 to different effect. The case was one in which the Supreme Court upheld the refusal of the High Court to admit a handwritten document to probate. The document was apparently signed by the testator (although there was some dispute regarding his signature) and by two witnesses both of whom were dead by the time it was sought to admit the document to probate as the will of the deceased. The document had not been formally prepared by a solicitor, no executor was appointed and there was no attestation clause. The court accepted that the document had a “ testamentary flavour” but held that there was no evidence of an intention on the part of the testator to enter into the formality of making a will.
14. The applicant relies on a passage from the judgment of O’Higgins C.J. which suggests that there are two preconditions to the application of the presumption, both of which the applicant submits were satisfied. He stated at p. 226 of the judgment:-
“To apply the maxim omnia praesumuntur rite esse acta it is necessary, in my view, that two conditions be observed. In the first place an intention to do some formal act must be established. In the second place there must be an absence of credible evidence that due formality was not observed.”
The first limb of this test is directed at establishing that what was done was intended to be a formal act. Clearly, if someone does not intend to make a will, the fact that he and two others sign an ambiguous document should not result in the accidental disposition of his estate. However, if the evidence establishes that the person did intend to make a will and the same ambiguous document is signed by himself and two others, then treating that document as a duly executed will may serve to give effect to the testator’s intentions. As will become apparent below, I regard evidence of the fact that a person attended a solicitor’s office and gave instructions for the drawing up of a will be strongly suggestive of an intention to do a formal act.
15. The second limb of the test is more complex, in part because of the use of the double negative and in part because, on the particular facts of the case, the court regarded the second condition as satisfied and so did not consider it in any detail. The application of the presumption allows a court to accept the observance of due formalities as probable when there is no direct evidence on the point either way. However, if there is credible evidence that due formalities were not in fact observed, then it would be inappropriate for the court to presume that they were. It is, I think, important to distinguish between positive evidence that the requisite formalities were not observed and an absence of evidence that they were observed. In this case, significant emphasis was placed by those opposing admittance of the copy will to probate on the fact that there is no direct evidence of its execution. This absence of evidence is due to the passage of time. All of those involved in the preparation and execution of the original document in 1980 are now themselves deceased. However, this does not prove or even tend to prove that the will was not executed. An absence of evidence of something is not, of itself, evidence that the thing did not happen. As I put it in a different context, an absence of evidence is not the same thing as evidence of absence. The circumstantial evidence, which I will detail below, suggests that the will was executed. No particular evidence has been advanced which positively suggests that, despite the indications to the contrary, the will was not actually executed.
16. The personal representatives of the deceased’s widow rely on the statement of O’Higgins C.J. in his judgment (also at p. 226) that it is essential that there be some evidence that the document was actually signed by the deceased. They argue that in the absence of such evidence, the presumption cannot be applied. A similar argument is made as regards a requirement that there be evidence that the will was actually signed by the witnesses before the presumption of regularity can be applied to their attestation of it. Apart altogether from the fact that I am bound by this statement contained, as it is, in a Supreme Court judgment, I have no difficulty in accepting it as correct. However, I think reliance on it in this case is undermined by an assumption that the evidence of the deceased’s signature or of the witnesses’ attestation must be some form of direct evidence. As the judgments quoted above demonstrate, depending on the particular facts indirect, circumstantial or documentary evidence may suffice to establish that a document was signed by the deceased and that the deceased’s signature was witnessed or acknowledged by witnesses.
17. A number of other cases were relied on by the parties which I do not propose to analyse in the same level of detail. The applicant places emphasis on the presence of an attestation clause in the copy document because the presence or absence of such a clause was a factor deemed to be significant in In Re Goods of Uniacke[1964] IR 166, Rolleston v. Sinclair[1924] 2 IR 157 and In Re Goods of Peverett[1902] P 205. I accept that the presence of an attestation clause makes it easier for a court to conclude that the deceased intended the document to be a will (i.e. intended a formal act) although the absence of such a clause is not determinative of the absence of such an intention. The personal representatives of the deceased’s widow’s estate also rely on Uniacke to support the propositions that the presumption cannot apply where there is no evidence that the will was signed by the witnesses and that the application of the presumption depends on there being “ some evidence other than the mere document itself ”.
18. I do not think that this case law can or should be read as establishing prescriptive rules as to the circumstances in which a document will or will not be presumed to have been properly executed. as – As observed by Pilkington J. in Leopold v. Malone[2018] IEHC 726, each case turns on its particular facts. Recent case law from the neighbouring jurisdiction suggests that the strength of the presumption and the corresponding strength of the evidence necessary to displace it will again depend on the facts of each case (see Channon v. Perkins[2005] EWCA Civ 1808, Neuberger L.J., and Mason v. Robinson Solicitors[2019] EWHC 4055). Thus, the stronger the evidence which suggests that the contested document was duly executed then the greater the evidence which will be required to displace the presumption that it was. Conversely, if the evidence which suggests that the document was duly executed is weak, it may be displaced by evidence which would not suffice in other circumstances. Where there is an absence of evidence from the attesting witnesses, the court will necessarily have to place greater emphasis on the surrounding circumstances.
Analysis of the Evidence
19. A feature of many of the cases relied on in which the document was not admitted to probate and, indeed, of Clarke v. Early itself, is that the document in issue had not been professionally prepared by a solicitor or by a person with knowledge or experience in the drafting of wills. This can be contrasted with the facts in In Re Goods of McLean where the testator, who had drafted his own will, was a clerk in a firm of solicitors and had extensive experience in the taking of instructions for and the drawing up of wills. There is no specific requirement that a solicitor be engaged in order for a valid will to be prepared although it is undoubtedly prudent for testators to seek and take appropriate advice on a matter as important as the disposition of their estate after their death. It is significant that the document which is sought to be admitted to probate in this case was one which was professionally prepared by a solicitor on behalf of his client. Many of the concerns rightly expressed by courts as to the intended legal nature of various handwritten, holograph or standard form documents do not arise where a client instructs a solicitor to prepare a will and the will is drawn up in accordance with those instructions. In my view, those opposing the admission of this document to probate as the last will and testament of the deceased have attached insufficient weight to two factors. The first is that the document was prepared by a solicitor on the basis of his client’s instructions; the second is the indirect or secondary evidence from that firm of solicitors supporting the contention that the original of the document, of which a copy is before the court, was in fact duly executed as the will of the deceased.
20. In my view, there is ample evidence on which I can be satisfied that the document before the court is in fact a copy of a document which was duly executed by the deceased as his will and attested by two witnesses in accordance with the requirements of s. 78 of the Succession Act, 1965. Firstly, the document itself is clearly one which has been professionally prepared by someone with legal experience and skill. Not only does it include basic elements, the absence of which has proved problematic in other cases (the appointment of executors, an attestation clause, the disposal of the residue of an estate); some of the gifts are themselves legally complex (the creation of an annuity and the grant of rights of residence) and are matters on which a lay person would usually have to take legal or other professional advice.
21. Secondly, the associated documents exhibited by Ms. Kiersey provide important evidence supporting the proposition that the will was duly executed. The wills register in T. Kiersey & Co. was clearly carefully maintained. The exhibited extract meticulously records the relevant details relating to the deceased’s will. As recorded, these are entirely consistent with the copy document – the date of the will, the names of the witnesses and of the executors are identical. Significantly, under the heading “Whether Will given to Testator on Date of Execution or deposited in Safe” , there is a set of marks indicating that, like the entries above it, the deceased’s will was retained “ in safe”. Finally, although not relevant to the question of execution, in a column under the heading “Remarks”, it is noted that a letter was sent to the deceased on the 25th June, 1997, i.e. after the theft of the safe.
22. Maintaining a wills register and keeping safe custody of clients’ wills is an important element of the private clients side of solicitors’ practice and may form a significant part of the goodwill of such a practise. Not only does it afford clients the security of knowing that their families will be able to locate their will after their death, the solicitor has an interest in continuing to provide professional services in connection with the administration of the estates of former clients. Recording details of unexecuted wills makes no legal or commercial sense and, in any event, most wills registers are set up, as this one was, to record details of the execution of the wills of which a record is being kept. Therefore, entry in the wills register is strong circumstantial evidence of the due execution of the will on the date recorded, 20th May, 1980.
23. In addition to the wills register, a series of documents are exhibited which show the process undertaken by the late Mr. Kiersey for the purposes of drafting this will. Firstly, there is a handwritten note dated 2nd April, 1980 which appears to be the instructions taken by him from the deceased, presumably at a consultation on this date, in relation to his proposed will. Ms. Kiersey has confirmed the handwriting to be that of her late father. Those instructions are consistent with the contents of the will as ultimately executed. In addition, there are three documents, all headed “ draft” and each of which comprise a typed version of a draft will which reflect the instructions recorded on the handwritten note. On each document, there are handwritten amendments in the late Mr. Kiersey’s handwriting which appear to be incorporated into subsequent typed versions. The amendments do not make any significant change to the instructions as originally given and seem to have been made largely for the purposes of clarity. Again, I regard these documents as constituting strong circumstantial evidence as to the deceased’s attendance with his solicitor for the purposes of making a will and the drawing up of a will in accordance with those instructions. It is also notable that the instructions given, as reflected in the will, expressly record an intention on the part of the deceased to leave his wife a significant benefit in excess of that to which she was entitled under the marriage settlement. In light of all of this evidence, I have no hesitation in rejecting the submission made on behalf of his widow’s estate that there is insufficient evidence of the deceased’s knowledge or approval of the contents of the will. In order for the court to accept this submission, there would have to be a concern that Mr. Kiersey had drafted a will on behalf of a client without instructions and either purported to execute it or recorded it as having been executed when this was not in fact the case. Not only is there is no evidence to support such a suggestion, all of the evidence points to Mr. Kiersey having been meticulous in the discharge of his professional duties towards his client.
24. Finally, an affidavit has been sworn by Elizabeth Treacy who worked as a legal secretary for the firm of T. Kiersey & Co. for 35 years between 1973 and 2008. Her duties included the typing of wills for clients and acting as a subscribing witness. Ms. Treacy does not claim to have been directly involved in the execution of the deceased’s will; rather the purpose of her affidavit is to provide evidence of the general practice as regards the drawing up and execution of wills in Mr. Kiersey’s offices at the material time. She points out that as of 1980, the firm did not have a photocopier. Consequently, duplicates were created by using a sheet of carbon paper between two sheets of white paper when typing the original will. She states that when an original will was executed and witnessed in full “the date of execution of the will, the names of the person who executed the will and the witnesses to the will would have been typed onto the carbon copy of the will”.
25. Ms. Treacy also described Mr. Kiersey’s practice when she was asked to attest a will. Mr. Kiersey would read the will to the testator and, once the testator was satisfied, she would then be asked to witness it by watching the testator sign it in her presence and in that of Mr. Kiersey, both of whom would proceed to witness the will. She would then immediately type in the details onto the carbon copy and if the testator wished to retain a copy of the will, the carbon copy would be handed to them. None of this is particularly surprising and no doubt reflects the practice of many solicitors around Ireland at the time. Based on her knowledge of this practice and on the contents of the wills register, Ms. Tracey is satisfied that the original will was executed by the deceased on 20th May, 1980, that it was witnessed by Mr. Kiersey and Mary Banks, that the execution of the will was recorded in the wills register, that the original was placed in the safe and remained in the custody of T. Kiersey & Co. and that the deceased was given the carbon copy onto which the details of execution had been typed. This is not and does not purport to be direct evidence of the execution of the deceased’s will. However, when taken with the document itself and the contents of the wills register, the record of instructions and the draft wills exhibited by Ms. Kiersey, it is, in my view, very strong circumstantial evidence that the will was duly executed. This is not just because there was a general practice but because the available documents are all consistent with the general practise as described by Ms. Treacy.
26. I accept that all of this evidence establishes, firstly, that the deceased intended to make a will consistent with the instructions he gave his solicitor and, secondly, that he attended at his solicitor’s office on 20th May, 1980 and executed the will which had been drawn up on the basis of those instructions. Consequently, notwithstanding the absence of direct evidence of execution or attestation, I have no difficulty applying the principle of regularity to the execution of the deceased’s will.
27. For the sake of completeness, I propose to address an argument made by the personal representatives of the deceased’s widow that there is evidence to rebut the presumption of regularity. As a matter of principle the presumption can, of course, be rebutted by appropriate evidence. The written submissions set out a number of authorities in which the presumption was held to have been rebutted (see Singh v. Ahluwalla[2011] EWHC 2907; Mason v. Robinson Solicitors[2019] EWHC 4055 Ch) usually because the evidence of the attesting witnesses does not actually establish due execution or because the attesting witnesses decline to confirm the authenticity of the will. It is submitted that the evidence of due execution in this case is weak. Emphasis is placed on the fact that Mr. James Delahunty, who found the document, has not sworn an affidavit setting out the circumstances in which he found it.
28. I do not accept that the evidence of due execution in this case is weak. It is circumstantial but nonetheless there are a number of pieces of evidence which are strongly supportive of an inference that the will was duly executed. Whist it would have been preferable to have had an affidavit from Mr. James Delahunty, the absence of such an affidavit is by no means fatal. Clearly, if a document were simply produced with no evidence as to how it was found and no other evidence to support the contention that it was a copy of the deceased’s will, then the argument might have had some force. However, the court cannot ignore the evidence of the wills register, the handwritten instructions and the draft wills all of which are in the same terms as the document which was found by Mr. Delahunty. Further, there is evidence from Ms. Kiersey as to how she came to be in possession of the copy document which is supported by a letter written by solicitors on behalf of Mr. James Delahunty. It is true that there is no one to positively confirm that the original will and the copy will accord, but this is not something which Mr. Delahunty could have done even if he had sworn an affidavit. I accept that the evidence before the court as to the finding of the will is not necessarily the best evidence but, in my view, it is good enough. Further, there is no contrary evidence to suggest that the account given by Ms. Kiersey as to how the document came to be in her possession is not correct. Equally, there is no contrary evidence to suggest that the will was not executed. Looking at the matter in terms of the second condition identified by O’Higgins C.J. in Clarke v. Early, there is an absence of credible evidence that due formality was not observed.
Knowledge and Approval of the Contents of the Will
29. Further, the same evidence establishes that the deceased had knowledge of and approved the contents of the will he executed. The will reflects the instructions given to Mr Kiersey and those instructions are peculiar to the deceased’s personal circumstances including his marriage settlement and the fact that he and his wife lived with his brother in a house on his property. There is no reason to suppose that the general practice of Mr. Kiersey as described by Ms. Treacy whereby the will was read to a testator before it was executed was not followed in this case. Finally, I regard the fact that the deceased kept a copy of the will amongst his personal papers as supporting both the contention that the will was duly executed by him and that he had knowledge of and approved the contents of that will.
Admission of a Lost Will to Probate
30. The parties have set out slightly different versions of the criteria to be satisfied before a lost will can be admitted to probate. All are agreed that there must be evidence of due execution of the will and that the copy must be a genuine copy (or a genuine reconstruction) of the original. Based on the analysis of the available evidence set out above, I accept that both of these criteria have been met.
31. The difference between the parties lies in the way in which the other criteria have been framed. The applicant relies on the exposition of the relevant tests in Spierin, Succession Act, 1965 and Related Legislation: A Commentary (5th Ed., 2019) which stipulates inter alia that an applicant must prove:-
“The existence of the will unrevoked at the date of death, or if it was destroyed an explanation for the destruction so as to nullify any intention to revoke the will. This is usually done by some person who saw the will after the death of the deceased or it may become evident from the circumstances in which the will was lost;”
The personal representatives of the deceased’s widow rely on a series of academic articles (Dowling & Grimes “ Lost Wills and Compromising Probate Proceedings” Irish Probate Law Journal (2013) 1(1) and Tim Brackken BL “ Court Applications: Non Contentious Probate Applications” (2013)) which stipulate that it must be proven:-
“that the original Will was in existence after the date of death of the deceased;”
In circumstances where the will was contained in a safe which was stolen in 1997 and never recovered, there is clearly no positive evidence available as to the existence of the will eighteen years later at the date of the deceased’s death in 2015. A further article, “ Non Contentious Probate Applications” (2012) by Rita Considine is more circumspect and advises this proof as necessary only “[I]f an original will can be traced to the custody of the deceased prior to his death and is not forthcoming following the death of the deceased”.
32. It is said that the judgment of Hanna J. in In the Goods of Cafferty[1940] 74 ILTR 161 is authority for the proposition that proof of the existence of the will after the testator’s death is a mandatory requirement. Cafferty was a case in which, although the will was drawn up by a solicitor, the deceased had retained possession of the original and it had been seen by various of his family members at his home. The testator died in 1915 and no steps were taken to administer his estate until after the death of his widow in 1933. By then, the alleged will of the testator had been lost and no copy could be found. There was positive evidence before the court from one of the deceased’s children that she had seen and read the deceased’s will after his death from which it was possible to reconstruct the terms of the will. In my view, the finding of Hanna J. in granting the application that he was satisfied that the will was in existence after the death of the deceased and was subsequently lost does not constitute a test which must be satisfied in all cases before a lost will can be admitted to probate.
33. The emphasis placed on proof of the existence of the will after the death of the deceased arises from the need to rebut the presumption of revocation that arises if the deceased is known to have been in possession of his will and it cannot be found after his death. Since a will is an important document which is normally kept safely even when a testator elects to keep it in his own possession, it is reasonable to assume that if the will cannot be found that is because the deceased destroyed it as he no longer intended that the will should operate as his last will and testament. No such presumption arises when the original will is not in the possession of the deceased as there is no reason to presume that the deceased could have destroyed a document of which he was not in possession. Consequently, in circumstances where a testator leaves his will for safekeeping in the offices of his solicitor, his accountant or with a bank and there is no evidence that he removed the document from the safekeeping of that institution, there is no basis to apply a presumption of revocation just because the will cannot be located by that institution after his death. Therefore, there is no corollary requirement to prove that the will was in existence after the date of death of the deceased in order to seek the admission of a copy to probate.
34. Indeed, as the applicant in this case points out, imposing such a rule could have unintended and illogical consequences. In circumstances where a will is lost whilst in the custody of a solicitor, an accountant or a bank, the ability of the court to admit a copy of that will to probate and to give effect to the intentions of the testator would be entirely dependent on the happenstance of the date on which the document was lost relative to the date of the deceased’s death. The imposition of a requirement to prove positively that the will was in existence after the date of the death of the deceased does not serve the same purpose where the will is not in the possession of the deceased. Consequently, I think that the rule is more accurately reflected in the expression of it in Spierin’s text. The question for the court is whether, assuming that the will was destroyed, there is an explanation for the destruction which nullifies any intention to revoke the will. Clearly, in this case some 24 years after the safe was stolen from the offices of T. Kiersey & Co., it is reasonable to assume that its contents have been destroyed. Consequently, the issue is whether the circumstances in which the will may have been destroyed nullify an intention on the part of the deceased to revoke the will? In my view they do.
Presumed Revocation of Lost Will
35. This last issue links into a related argument made by the parties opposing the admission of the copy will to probate to the effect that the deceased was known to be prudent in relation to his affairs and prompt in relying to correspondence (per the affidavit of Seamus Forristal, administrator of the estate of Kathleen Delahunty). Mr. Forristal believes it would be very surprising and out of character for the deceased not to have acted on correspondence from his solicitor informing him that the will had been stolen and requesting him to attend the office to re-do the same. The court is asked to infer from the deceased’s failure in this regard an intention to revoke the will which he had executed some seventeen years earlier.
36. It is difficult to know how much credence can be given to the characterisation of the deceased as being prudent in relation to his affairs in circumstances where, at the time of his death, the only will which he had made had been made some 35 years earlier and had not been reviewed or updated since then. The deceased owned farmland and his estate is now worth well over a million euro. A prudent approach to an estate of this size would be to review the proposed disposition of the estate at regular intervals with the benefit of professional advice. This may, however, be a matter of subjective opinion. Equally, if the deceased was in fact as prudent as he is portrayed, perhaps he did not receive the letter which was sent to him by T. Kiersey & Co. on 25th June, 1997. The postal service is not perfect and, even when delivered, post may be inadvertently lost in the recipient’s home. The available evidence is sufficient to allow the court to be satisfied that a letter was sent but, if the court were convinced that the deceased would have acted on it promptly after receipt, not necessarily sufficient to allow the court to conclude that the letter was actually received.
37. However, resolution of this issue does not have to turn on a description of the deceased’s character. The fundamental difficulty with the argument is that the loss of the will through the theft of the safe did not itself operate so as to revoke the will. If it had transpired that the safe had been recovered with its contents intact weeks, months or perhaps even years after it had been stolen, no argument could have been made that inaction on the part of the testator in the intervening period had served to revoke the will. Can that argument now be made because the safe has not been recovered and a lengthy interval has passed between the theft of the safe and the death of the deceased? In my view, it cannot. It is one thing to presume that a deceased has revoked a will in his possession when that will cannot be found after his death. It is quite another to assert that a will should be presumed to have been revoked because of the inaction of a testator upon being informed that his solicitors have lost the original of his will. Clearly it would have been prudent for the deceased to attend at Ms. Kiersey’s offices and to give positive instructions one way or another as to what he wished to do with his estate in the circumstances. However, I do not think that the legal consequences which it is now sought to attach to the deceased’s inaction are ones which properly follow.
38. The presumption of revocation described above arises because the facts suggest that a deceased testator positively did something with a will in his possession. Section 85(2) of the 1965 Act expressly provides that the destruction of a will by a testator will operate to revoke the will, provided that the revocation is intentional. It also provides an exhaustive list of the methods by which a will may be revoked. Section 85 does not envisage that a will can be revoked through inaction nor that a will can be revoked unintentionally. To accept that the will was revoked by the deceased simply because he did not respond to solicitor’s correspondence – which he may or may not have received – would be contrary to the entire scheme of the 1965 Act. It may well be, as suggested by his widow’s family, that a more equitable outcome would ensure that the widow’s family also benefitted in the distribution of the estate. However subject to certain restrictions under the Succession Act, 1965, it is a matter for a testator to decide how he or she wishes to dispose of their estate. The decisions made by a testator in making a will many decades earlier may seem unfair in light of how family relationships subsequently develop, but it is the prerogative of the testator to make changes to their will to reflect this, or not to do so if that is their choice. The court cannot assume an intention on a testator’s part that is not grounded in or cannot be reasonably inferred from the testator’s actions, much less compliance with the formalities necessary to give effect to any such intention.
Conclusion:
39. In light of the above, I will allow the application made by the applicant and will grant an order admitting the last will and testament made and executed on 20th May, 1980 of Thomas Delahunty, deceased, to probate in terms of the carbon copy of the original will of the deceased.
Estate of Gillespie
[2015] IEHC 462
JUDGMENT of Ms. Justice Baker delivered on the 13th day of July, 2015
1. Charles (otherwise Cathal) Gillespie deceased died on the 11th May, 2013. He previously made what is asserted to be his last will and testament on the 28th December, 2009. This application is brought by notice of motion by the executor named in the said will, his nephew, to set aside a caveat lodged on behalf of Annie O’Donnell, a sister of the deceased, on the 25th March, 2015. The estate is very small, and the applicant asserts that its value is less than €100,000. While the value of the estate was not contested in the early stages of this application, the respondent now asserts that the real property contained in the estate has a value far in excess of that contended for by the applicant. The matter of valuation is not generally speaking a matter that ought to concern the court in determining whether to remove the caveat, but I consider that the size of this estate ought not to be forgotten in my consideration of the matter before me.
2. The caveat was duly warned and the caveator caused an apparance to the warning to be entered on the 7th May, 2014. In that context, and following repeated requests on the part of the named executor that the caveat be removed, this matter came on before me in the Monday Probate Motion List and following a number of hearings I reserved my judgment.
3. The will of the deceased having appointed the applicant, Patrick Boyle, as executor and trustee, gave, devised and bequeathed all of his estate to him. No other provisions in the will are relevant to this application. What does require to be noted however is that the will is shown as having been witnessed by two persons, Joseph McAteer and John McLauchlan, both of whom were identified has having addresses in Glasgow.
4. The deceased had previously made a will dated the 15th February, 2001 by which he had devised and bequeathed his house contents and land at Crolly County Donegal to his sister Annie O’Donnell for life, with remainder over to her two children as tenants in common in equal shares.
5. No dispute arises as to the formal validity of the will made in Glasgow which complies with the formal requirements of Irish law. The respondent however asserts that the will contains some unusual elements, and I return to those and any implication that might arise from this assertion later in this judgment.
6. The caveator asserts that the last will of the deceased is not the will identified as having been made on the 28th December, 2009 in Glasgow, but was the earlier will of 2001 by which was appointed as executrix Jacqueline Sharkey solicitor. Ms Sharkey by affidavit sworn 19th March, 2015 avers that the deceased was a long standing client of her firm, and that at no stage after making the will with her in 2001 did he indicate to her or any member of her firm that he had a wish to amend or revoke the will. She said he was a very conscientious person who was careful in his business affairs, and that had he intended to change his will she would have expected him to seek her advice, and that it seems unlikely that he would have made a will in Glasgow without consulting her. She also makes a point, which took on a degree of importance in the hearing before me, that the weather conditions in the Christmas period of 2009 were particularly severe and that it was unlikely that flights to Glasgow from the closest airport at Derry would have been available with any frequency or at all. Ms. Sharkey also says that she finds it difficult to understand how the deceased who was then 88 years of age and in poor health would have taken a short trip to Scotland in extreme weather conditions to sign a will. She also points to the fact that the deceased signed his name by the name Cathal, a name which she never knew him to use, and that she knew him as Charles.
7. Ms Sharkey also raised a question, which also came to have some importance in the argument before me, as to how the applicant came to be in possession of what she believes not to be a genuine will of the deceased, and says that she has been unable to ascertain who drafted this document, the occupation of the witnesses or the relationship of those persons to the applicant. In that context it should be noted that the will of December 2009 is held by the solicitor for the applicant and was identified as being so held in correspondence with Ms Sharkey.
8. The caveator Annie O’Donnell swore an affidavit on 18th March, 2015 in which she averred that she and her brother were very close and that she was in constant contact with him. It seems that the deceased had lived in Scotland for a while but had relocated to Ireland at an unidentified time. She says she was his next of kin on his passport and hospital documentation. She too asserts that the deceased did not ever sign his name as Cathal Gillespie, and that she did not know him to be called by that name. She says she is “very certain that Charles was in Donegal” on the date the 28th December, 2009 when the will was purported to have been made. She says that her daughter, the niece of the deceased, spoke to him on Christmas day and she also confirms that the weather was particularly severe during that Christmas period.
9. She states quite simply that as the deceased was 88 years old in 2009 and because of his health and poor weather conditions “there is simply no way that he would have been in the position to travel to Scotland”. She also says that she cannot understand why the deceased might have left his estate to one nephew when he had a good relationship with all of his seven nephews and nieces.
10. The respondent also exhibits a note from a local supermarket showing that shopping was delivered to the home of the deceased on the 30th December, 2009 and on the 5th January, 2010, and that the delivery van had become immobilised in the snow on the 22nd December, 2009 as a result of which the shopping ordered by the deceased had been delivered to a neighbour on that day. She asserts that this sequence of deliveries suggests that the deceased was indeed in his home in Donegal throughout the relevant period.
11. A local farmer, John Con O’Donnell, swore an affidavit on 19th March, 2015 averring to the fact that he visited the deceased on St Stephen’s Day, 26th December, 2009 at his home in Co. Donegal.
12. Michael Campbell, also a neighbour of the deceased, confirms that the weather in the Christmas season of 2009 was particularly severe and that the access road to the house of the deceased was impassable. He says that the deceased was at home on the 30th December, 2009.
13. The applicant states in a replying affidavit sworn 7th May, 2015 that the deceased frequently used the Irish form of his Christian name, Cathal, and that this was the name by which he was referred to by his mother, and that it is not surprising that the deceased used the name Cathal as he lived in a Gaeltacht area and frequently used the Irish form of his name.
14. The two persons who witnessed the will have both sworn affidavits by which they confirm the execution by the deceased of the will in Glasgow on the 28th December, 2009, and from these affidavits, which were in identical form, it is clear that the attestation of the will was done in accordance with the requirements of the Succession Act 1965. One of the witnesses, John McLaughlan, is a retired head teacher, and the other a Joseph McEnteer, a school teacher.
15. Both parties employed a graphologist to advise on the authenticity of the signature of the deceased on the document of 28th December, 2009, and both graphologists agree that as a matter of probability the signature thereon is the signature of the deceased. While some argument has been made by counsel for the respondent that some of the exhibits to the graphologist’s report obtained by the applicant have not been made available to her, the evidence quite clearly points to the expert opinion being that the testamentary document of the 28th December, 2009 was executed by the deceased.
Conclusion on the evidence
16. The evidence thus points to a conclusion by the experts that the document in respect of which probate was sought was executed by the deceased. The caveator asserts that the deceased could not have been in Glasgow on the date of the 28th December, 2009 as the weather was particularly inclement. It is also asserted that the deceased had no reason to depart from his previous approach to the disposal of his assets after his death, namely that he would make a bequest to his sister, to whom he was very close, and that further there is no reason why he would have preferred the applicant over his other nephews and nieces.
The Monday motion list
17. This matter comes before me as a motion on the Monday Probate List. That list is intended to deal with so called “non contentious” probate motions, and although that description is clearly a misnomer in that many applications are contested, the purpose of the list is administrative and it operates to adjudicate on disputes which may be resolved on affidavit, or determined on matters of law. It is possible, although unusual, that a motion in this list would throw up contested facts that would require to be resolved following cross examination of the deponent of an affidavit. The Monday Probate List is not a substitute for a full probate action, or an action with regard to the validity of a will, nor can an application in the List normally resolve a contested question of testamentary capacity, or an assertion that a deceased had executed a purported testamentary document as a result of undue influence or duress which resulted in a lack of true understanding of the will or intention to execute a will in that form.
18. Section 36(3) of the Succession Act 1965 allows the court to adjudicate with regard to doubts or questions that arise in the administration of an estate and the Monday Probate List is primarily a list by which the High Court exercising its probate jurisdiction may give directions to the Probate Registrar with regard to certain matters in the probate jurisdiction.
19. While the distinction between the class of matters which is suitable for the Monday Probate List is not one in respect of which I wish in this judgment to make a definitive statement, I consider that a good starting point for the purposes of determining the issue in dispute in this case, is whether the issue is one that may be resolved on affidavit, or is properly speaking a matter in respect of which a full plenary hearing is required.
20. It is not disputed that the issue in this case is one of fact, and the controversy is with regard to whether the deceased did execute the will in Glasgow on the 28th December, 2009, and not whether, for example, the will falls for absence of form, or that an issue of fact has been raised in respect of which it is possible to reach a finding.
21. An application to set aside a caveat is one that may be properly be brought on affidavit, but may not always be possible to resolve without oral evidence, and I turn now to consider whether the respondent has raised a sufficient issue and doubt on affidavit such that the order setting aside the caveat ought not be granted on the motion, which will of course have the practical effect that a grant of probate in the will of the 28th December 2009 will not issue.
The treatment of affidavit evidence
22. Neither party has sought to cross examine the affidavit of the other, and indeed no affidavit has been furnished from either graphologist, it being apparent that both handwriting experts agree and that no purpose would be served from seeking further evidence from either of them.
23. The first matter I must determine is whether the respondent has raised on affidavit a sufficient issue of fact to render it impossible to determine for the purposes of this application the facts surrounding the execution of the document on the 28th December, 2009. I consider that the respondent has not raised a sufficient issue of fact for the following reasons.
24. While the respondent asserts that the weather conditions were severe in the Christmas season of 2009, and this is not disputed, the respondents are not in a position to point with any certainty to the whereabouts of the deceased on the date of the 28th December, 2009 when the testamentary document is said to have been executed by him in Glasgow. The respondent has raised a number of suspicions, one of which, whether the signature of that document was the signature of the deceased, has been resolved in favour of the document, but no evidence has been adduced that would suggest the deceased was not in Glasgow on the relevant date and that ipso facto he could not have executed the document. In fact the opposite is the case and two professional persons have sworn on affidavit that they witnessed the execution by the deceased of the testamentary document in Glasgow on that date. While I appreciate it is difficult to prove a negative, the respondent has not adduced any evidence that there was in fact no means by which the deceased might have been able to travel from Ireland to Scotland at or around the relevant dates and the respondent’s evidence at best shows that the deceased was in Ireland on the 26th December, and on the 30th December, but cannot fill the gap between those dates, the relevant window in which it is asserted the testamentary document was executed. Thus the respondent is not in a position to point to any fact, as opposed to suspicion or conjecture, that would suggest that the deceased was not in Glasgow at the relevant time.
25. Accordingly, and while I note the assertions that the choice of beneficiary of the deceased was unexpected, and perhaps even out of character, no evidence has been adduced before me that makes it impossible for me to resolve the issue on this motion with the assistance solely of the affidavit evidence before me. I do not require for the determination of this matter to choose between differing affidavit evidence, and indeed the evidence that I have, which remains uncontroverted, is that the deceased was in Scotland on the 28th December, 2009, and did execute the testamentary document now sought to be admitted to probate.
26. One must bear in mind also that the onus to justify the caveat, and the onus to persuade the Court that probate ought not to issue in respect of the testamentary document of the 28th December, 2009 rests on the respondent. I consider that the respondent has not raised on affidavit sufficient dispute on the facts to meet the burden.
Cross examination of witnesses
27. The respondents contend that the affidavits of the attesting witness have raised, as was put by counsel, “suspicions”. These suspicions remain at the level of conjecture in the absence of any cross examination of those deponents on affidavits which as matters currently stand in the application before me, and the affidavit evidence enclosed raised no doubt in my mind as to the veracity of the matters therein deposed.
28. Late in the process before me, counsel for the respondent did make an informal application to cross examine the attesting witnesses. It was noted in that context that as both of these witnesses were out of the jurisdiction that the cross examination could only occur by the issue of letters rogatory by this Court to the Scottish court, and/or by the taking of evidence on deposition in Scotland, under Council Regulation 1206/2001 on the taking of evidence in civil or commercial matters. No formal application was made for the assistance of the Irish court in aid of an application to cross examine the deponents’ affidavits in Scotland, but it seems to me that even were a formal application to come before me, and even indeed if I were to grant the application such that the process for the conduct of the cross examination of the attesting witnesses would commence or conclude, the matter now in issue before me would not be progressed in any real way.
29. I come to this conclusion because it seems to me that the challenge sought to be mounted by the caveator to the will of the deceased is not a challenge that no testamentary document was executed by him on the 28th December, 2009, but rather that certain “suspicions” have been raised by her with regard to that document, and the matter crystallised in the course of argument as ultimately being an assertion that if the deceased did execute the will, and the evidence points to it having been executed in his hand, that he did so as a result of undue influence and/or duress such that the purported testamentary document ought to be condemned.
30. The reason for the caveat then in its essence arises from a challenge to the will which ought properly to be brought by way of a will suit by which the court would determine on oral evidence, and in the context of the applicable legal principles, whether the testamentary document of the 28th December, 2009 may properly be said to be the will of the deceased. The action is an action to condemn the will brought by a probate action, and by which the will may come to be either proved in solemn form of law or condemned. Such an action will be prosecuted by plenary proceedings either on behalf of the estate to prove the will in solemn form, or more likely by an action by the caveator to revoke a grant and/or to declare that the will was executed as a result of undue influence or duress, or on the ground that some other vitiating factor exists which renders the will not truly the document of the deceased.
31. Such a determination may not be made on motion, and not in the Monday Motion List.
32. Because it seems to me that the action which the respondent seeks to bring is in essence a plenary action in the form now identified by me, I regard it as fruitless for me to now permit the commencement of a process by which some of the affidavit evidence tendered on behalf of the applicant may be cross examined. The result of such cross examination seems more likely to be focused on the issue of duress, undue influence or other vitiating factors, or to establish facts to condemn the testamentary document as having been made by the deceased at a time when he was not of sound mind, memory or understanding, or on the basis that he did not know of and approve the contents thereof, or that there existed other vitiating factors which rendered the will void.
The purpose of entering a caveat
33. Thus, there being no issue of formal validity, and having regard to the evidence from the graphologists, the continued maintenance of this caveat is in aid of an assertion that the testamentary document of the 28th December, 2009 ought to be condemned, or if a grant has already issued that the grant be revoked.
34. The purpose of entering a caveat is to prevent the issue of a grant of probate, but a caveator cannot indefinitely hold up the issue of a grant merely on account of suspicion. As is stated at para. 221 of Spierin, The Succession Act 1965 and Related Legislation: A Commentary, 4th Ed, (2011, Bloomsbury):-
“A caveator who has or claims no interest, but has reason to oppose a grant being made to an applicant, may commence action to show cause.”
35. In Re Nevin deceased (unreported, High Court, 13th March, 1997) Shanley J. at p. 4 pointed to the fact that the effect of s. 38 of the Succession Act 1965, and O. 79, r. 41 to 51 of the Rules of the Superior Courts is:
“… that the warning in response to the Caveat obliges the person entering the Caveat either to abandon his claim to a grant or to take contentious proceedings in furtherance of his claim….”
36. Later Shanley J. at p.5 noted that the purpose of the caveat is
”…merely to ensure that no grant issues unknown to the Caveator: its presence does not restrain the Court from ordering a grant where a Caveator is on notice of the application of the grant.” (Emphasis in original)
37. I adopt that statement of the law, and also the statement contained in p. 243 of Miller’s Irish Probate Irish Practice (1900, Maxwell) that the effect of warning a caveat is “to compel the caveator either to take contentious proceedings or to abandon his claim to a grant”.
38. Further, rule 55 of the Non Contentious Probate Rules makes it clear that a grant of probate or administration may not issue from the District Registrar following the lodging of the caveat, unless the caveat has expired, or being warned and no appearance entered or “that the contentious proceedings consequent upon the caveat terminated”.
Conclusion on lodgement of caveat
39. I consider that this caveat was lodged for cause, and at the time it was lodged the caveator believed that the testamentary document of the 28th December, 2009 was not made under the hand of the deceased. There is no doubt that the caveator has an interest in the matter in that she is the beneficiary under the will which would stand revoked should the 2009 document be admitted to probate. However, the matter as it has now crystallised is an assertion on the part of the caveator that suspicious circumstances exist surrounding the execution of the will, and the resolution of any assertions of invalidity arising from such suspicions may be achieved only by a probate action, and may not be resolved on a motion.
40. Miller immediately after the statement quoted at para. 37 above goes on to say by entering an appearance to the warning, the caveator may compel his deponent desiring a grant to be the plaintiff in such contentious proceedings. The applicant however elected not to commence proceedings to prove the will in solemn form, but sought the removal of the caveat and the application proceeded, and it has become clear to me that the basis on which the caveator has continued to assert a right to maintain the caveat lies in her suspicion or concern with regard to matters of testamentary capacity or other matters that might vitiate the will.
41. I consider that the only way by which the contentious proceedings asserted as being appropriate by the caveator may be determined is by a plenary action in which a court on oral evidence can determine questions of capacity and/or the knowledge of the deceased of the document that he executed, and accordingly I consider that it is appropriate, in those circumstances, that the caveat be removed and such proceedings, which the precise form thereof has not been identified to me, may in due course come to determine matters in the dispute.
Conclusion on continued maintenance of the caveat
42. Accordingly, the purpose for which the caveat was lodged has now become spent, and any further challenge to the testamentary document of 28th December, 2009 must be brought to trial in a probate action. No purpose is served by the cross examination of the attesting witnesses and no dispute exists on affidavit which requires me to resolve a dispute of fact. The facts as disclosed point to the execution of a document by the deceased in Glasgow on the 28th December, 2009 and the concerns expressed by the respondents, while they might ultimately come to be established as a matter of fact, are at this juncture no more than conjecture, suspicion or disbelief arsing from what is contended to be an unexpected and inexplicable change of mind by the testator.
43. Thus, in those circumstances I consider that the caveator has no further basis on which to maintain the caveat and that it is appropriate that an order be made directing the removal of the caveat. While this may have the inevitable result that a grant will issue to the executor named in the testamentary document of the 28th December, 2009, whether that will ultimately comes to be condemned may only be resolved in a probate action and not in the motion.
In the Goods of Laurence Griffin
High Court.
27 February 1931
[1931] 65 I.L.T.R 108
Hanna J.
X disappeared on 25th December, 1929 and was not thereafter seen or heard of His bicycle and part of his clothing were found. Certain persons had been charged with his murder; but were discharged. Civic Guards and civilians had searched thoroughly; but no trace of X or his body was found. The wife of X applied for an order to presume his death, so that she might obtain a grant of administration. Three civil actions arising out of the disappearance of X had been heard by the Judge to whom this application was made.
Held, that it was a case where the Judge shoula take into account his judicial knowledge of the circumstances and that without presuming death, liberty to apply for a grant of administration should be given to the wife on her alleging her husband’s death to the best of her belief.
This was an ex parte application on behalf of Mary Griffin, of Millbrook Terrace, Kilmacthomas, County Waterford, for an order presuming the death of her husband; so that she might obtain a Grant of Administration.
The application was grounded on an affidavit by the applicant which set out the facts as follows.—
I was married to the above named Laurence Griffin on the 25th day of April, 1907, at the Roman Catholic Church of Carbally, Parish of Duncannon, in the County of Waterford. From the day of our marriage until Christmas day, 1929, my said husband and I lived happily together at the above address. There are three children living of our marriage—namely, Bridget, aged 23; Alice, aged 21 and John, aged 20.
The said Laurence Griffin served in the British Army during the Great War, from August, 1914, to the middle of 1916, at which date his period of service as a reservist expired. From the year 1913 until Christmas 1929, with the exception of his period of war service, my husband was employed as a postman, attached to the Post Office at Kilmacthomas, his wages being three pounds per week.
My said husband was a man of very regular and sober habits and our married life was of the happiest description. So far as I am aware he had no debts or troubles of any kind, such as would be likely to make him wish either to take his own life or to absent himself from his home or his employment.
On Christmas day, 1929, my husband left home at about 11 a.m. for the purpose of delivering letters in the neighbourhood of Kilmacthomas and Stradbally, and informed me that he would return home as early as he could that night. I am personally aware that in the course of his duties he had to go to Stradbally, a distance of about eight miles from Kilmacthomas. These duties consisted of the delivery of mails and the collection of letters from boxes and subpost offices. *108
On leaving home he was in his usual health and spirits, and I fully expected to see him that night between 10 and 11 p.m., when I expected he would be finished his day’s work. From the time he left home at 11 o’clock aforesaid, I have never seen my husband, nor have I received any communication from him by letter or otherwise.
I have made the most diligent enquiries in the village of Kilmacthomas, and in all the surrounding neighbourhood and have been informed by various friends and acquaintances as well as by strangers, that my husband was last seen alive in the village of Stradbally, which is about eight miles from Kilmacthomas, on Christmas day, 1929, at about 7 p.m.
To my knowledge large parties of Civic Guards have searched the village of Stradbally and the surrounding country, in order to obtain trace of my husband either dead or alive; but these searches have been of no avail, save that his bicycle and leggings, which I identified as his property, were found on the road between Stradbally and Kilmacthomas, about two miles from Stradbally. This has led me to believe that my husband has met his death, but whether by accident or foul play, I am unable to say.
Certain persons to the number of ten, were charged in the District Court at Waterford with my husband’s murder and with disposing of the body to prevent an inquest, but. after prolonged hearings and adjournments, informations were refused against them and they were all discharged.
Out of his said wages my husband always gave me two pounds ten shillings per week, and I believe that he had no money with which to leave the country or to support himself, without his weekly wages from the post office. Nevertheless, he has not reappeared either at his own home or at the post office at Kilmacthomas, to resume his employment.
A most assiduous and prolonged search was made by the officers and men of the Civic Guards with the object of finding my husband either dead or alive, but the efforts of the authorities proved fruitless in getting any trace of my said husband. I also employed a party of men at my own expense to search, with the assistance of my friends, certain localities in the vicinity of Stradbally which had been named to me in anonymous letters as likely places where my husband’s body would be found, but these searches also proved abortive.
The only assets my said husband left were two policies of insurance with the Prudential Insurance Company, Limited (Industrial Branch) which amount to £22 10s. 0d. I am advised and believe that the post office authorities would, in the event of a Grant of Administration being extracted by me, be liable to pay me as Administratrix of the said Laurence Griffin a sum of £156, being the amount of a gratuity payable under the Superannuation Acts.
I am informed and believe that it will be necessary for me to apply to this Honourable Court for liberty to apply for a Grant of Administration, as in the case of intestacy, and in the affidavit to lead to such Grant to state that the death of deceased, not positively but to the best of my knowledge and belief, as having occurred on or since the 25th day of December, 1929.
All the facts arising out of the disappearance of Laurence Griffin, as set out in the affidavit, had come before Hanna, J., in three civil actions arising out of the matter.
J. J. Mooney for applicant.
Hanna, J., in the course of his judgment said that this was a case in which he was entitled to take judicial notice of what was in his recollection from what he had already heard in the Courts.
In an application of this kind it was not customary to presume death and he would not make such an order, but without presuming the death he would give the applicant liberty to apply for a Grant of Administration alleging the death of her husband not positively but to the best of her belief.