Representation Overview
Application for Representation
An application for a grant of probate is made to either the central Probate Office or one of the district Probate Offices throughout the country. The Probate Office has the authority to issue grants of probate throughout Ireland. The Probate Offices are part of the High Court.
In the vast majority of cases, the Will is proved by Affidavit swearing as follows:
- the amount of the estate;
- that the document attached is a true last Will;
- that the deceased did not marry or renounce it afterwards;
- that the executor will administer the estate.
Certain other papers must be lodged with the Probate Office, including certain inheritance tax documents, an original and true copy of the will, the above-mentioned oath and a Notice of Application.
Issue of Grant
Once the papers are reviewed by the Probate Office and the will appears to be valid, a grant of representation in common form issues. This is a Court sealed document which gives the executor or administrator the power to act.
If there are any defects in the documents lodged, in the will or other circumstances so require, the Probate Office may query the papers lodged. Where a will does not appear to be complete or, for example, there is any question as to whether it was properly signed, the Probate Office may require further oaths and affidavits by witnesses and other persons to confirm that a valid Will has been made.
Citation and Renunciation
If the person named as executor or the next person entitled, does not or will not take up his office, there is a procedure by which a “citation” may be issued from the Probate Office requiring him to take up or refuse the office within a specified period. If he does not apply for a grant within a specified time, then the next person in order of entitlement may proceed to take out the grant.
An executor may renounce his rights to take probate in writing. This is a formal document in writing which is witnessed and filed in the Probate Office. Once he has renounced, the person may not become executor without the consent of the Court.
Objection
Where a person objects to a grant of representation being issued, he or she may file a “caveat” in the Probate Office that he objects to the grant being issued without prior notice to him. The purpose is to enable the person filing the caveat to lodge an objection.
The purpose of the caveat may be to assert a doubt that the person filing it has about the validity of a will, the suitability of the personal representatives or generally to ensure that a particular will can be contested.
The person entitled to extract a grant of representation may warn a caveat. If the person who lodged the Caveat does not appear to the warning, the caveat will cease to have effect. If an appearance is lodged, the caveat may only be set aside by an Order of the Court or on the consent of both parties.
The warning is issued by the Probate Office to the person who has lodged the caveat requiring him or her to substantiate the basis. If he gives some good and valid reason, then the applicant may be required to have the court determine the question, such as the validity of the will, etc.
Letters of Administration
The procedure for application letters of administration is broadly similar to that for a grant of probate. The entitlement to apply for letters of administration follows the entitlements on intestacy. The grant is said to follow the interest.
For example, where there is a living spouse, the spouse generally has the first and pre-eminent right. Other beneficiaries, such as the deceased’s children, may only take a grant if the spouse renounces.
Where a number of parties are equally entitled, the first person to apply receives the grant.
Where a person with an interest, such as a child, wishes to take out a grant but the person with the primary right, e.g. the spouse, neglects or refuses to do so, there is a mechanism to require the latter person to take out a grant within a certain time, or lose that right.
Atypical Grants
Where the person named as executor in the will has died or renounced probate, the rules lay down an order of entitlement for other persons to take out a grant. Generally, it falls to the person with the largest or next largest interest.
For example, the residuary legatee, i.e. a person who receives the balance of assets (irrespective of their extent), will have the next right in order.
Where a grant is taken in respect of a will by somebody other than the executor, it is called letters of administration with the will annexed. Where there has been an earlier grant to the executor, and the estate has not been wholly administered, the grant is one of letters of administration with the will annexed de bonis non.
Proof in Solemn Form
In a very small number of cases, a will is proved by a Court Order. This is called proof in solemn form. There is a special High Court procedure for contesting and proving wills.
Proof in solemn form may be required where the Probate Office is not satisfied that the will is in order and is not satisfied by the results of affidavits or enquiries.
Proof in solemn form may arise where there is a contest in relation to the validity of the will or where there are competing wills. Contested probate cases commonly involve a question over mental capacity or whether the deceased has been unduly influenced in making the will concerned.
Court Grant
An application may be made to the Court for a grant of representation to any person, as the Court thinks fit. This may occur where special circumstances necessitate it.
It is possible to apply for and obtain limited grants of representation. The purpose is to deal with particular issues that arise, such as taking and defending legal proceedings where a grant has not been taken out. This may arise, for example, when the person entitled to take out the grants fails or refuses to do so.
High Court Special Summons
Some types of action may be commenced and dealt with by a Special Summons in the High Court. These are defined in the Court Rules.
A Special Summons is a simplified procedure, heard primarily on affidavit. It may be used in the following types of probate / succession cases
- administration where a wilful breach of trust is not claimed
decision on issues affecting the rights of persons claiming to be creditors, beneficiaries, next of kin et cetera - seeking directions to the personal representative to do or abstain from doing a particular act including producing and vouching accounts
- approval of a sales purchase or other transaction in relation to the estate
- construction / interpretation of any deed document will
- such other matters as the court thinks fit to decide on special summons.
The matter is listed initially before the Master who may determine the matter or adjourn it to the judges list.