High court Non Contentious Probate applications

1. High court Non Contentious Probate applications By Karl Dowling BL

2. Jurisdiction

3. Miller’s Probate Practice (1900: Maxwell) “…contentious business deals exclusively…with the revocation of probates or of letters of administration…”

4. Probates and Letters of Administration Act (Ireland) 1857

5. A Concise Guide to the Practice (Contentious and Non-Contentious) in the Probate (And Matrimonial) Division of The High Court of Justice Ireland, Fourth Edition, Dublin, 1885“Non-Contentious’ or ‘Common Form Business’ is defined by section II of the ‘Probate Act, 1857’, to mean ‘the business of obtaining Probate and Administration where there is no Contention as to the right thereto, including the passing of Probates and Administrations through the Court of Probate in Contentious cases when the contest is terminated; and all business of a Non-contentious nature to be taken in the Court in matters of Testacy and Intestacy, not being proceedings in any suit; and also the business of lodging Caveats against the grant of Probate or Administration.”

6. In the Matter of the Estate of Charles Gillespie Deceased [2015] IEHC 462

7. “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.”

8. Form of Applications to the High Court Non-Contentious Probate List

9. “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.”Order 79, rule 87

10. • The motion paper must contain a short statement of the principal facts upon which the motion or application is grounded.• The motion paper must conclude with the terms in which the motion is to be made.• The statement must not contain facts which are not supported by affidavit or official document and it should be recalled that matters of a scandalous nature may imperil a party to condemnation in costs.• All rulings made by the Probate Officer must be referred to in the motion paper.

11. Order 79, rule 88 Rules of the Superior Courts

12. 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.

13. • the style and object of, and the names and descriptions of the parties; • 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.

14. APPLICATIONS PURSUANT TO SECTION 27(4) OF THE SUCCESSION ACT 1965

15. Subsection (4) is of paramount importance and provides that: 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.

16. • the existence of some matters amounting to special circumstances be they novel in nature or otherwise and; • that it is necessary and expedient for the court to make such an order.

17. 2. GRANTS FOR A PARTICULAR PURPOSE

18. Ad colligenda bona Ad litem Pendente lite

19. 3. Lost Wills

20. There is evidence forthcoming to confirm that the Last Will and Testament of the Deceased was executed in accordance with the provisions of the Succession Act 1965

21. That there is evidence that the signature which appears at the foot or end of the Photostat Copy Will is in fact the signature of the Testatrix

22. There is evidence forthcoming to confirm who caused the Photostat Copy Will to be made and that to all intents and purposes the Photostat copy is a true and accurate copy of the Original Will

23. That all the individuals entitled to share in the administration intestate of the Deceased are either on notice of the application or alternatively consenting

24. Gross and net value of the estate

25. Advertisement regarding Lost Will must be placed in the Law Society Gazette

26. There is evidence forthcoming to confirm the Original Last Will and Testament of the Deceased was in existence unrevoked at the date of their death

27. In the Matter of Mary McDermott Deceased [2015] IEHC 662

28. Welch v Phillips (1836) 1 Moo PC 300 “the rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.”

29. In Re the Goods of Coster (Deceased) (Unreported 19th January, 1979) “It is however a presumption only and not an absolute rule so that it may be rebutted. Thus the occurrence of a fire at the testatrix’s home, or the character of the deceased’s custody (see judgment of Chief Justice Cockburn in Sugden v. Lord St. Leonards (1876) Prob Div 154 at p.215) or the possibility of a disappointed beneficiary having removed the original will have to be taken into account as matters which may rebut the presumption.”

30. Harris v. Berrall (1858) 1 Sw & Tr 153 “If it is once proved that a will has been duly executed, I hold that it is entitled to probate, unless it is also shewn that it has been revoked by one of the several modes pointed out by that statute….”

31. S. 85 (2) of the Succession Act 1965: “no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”

32. Sugden v. Lord St. Leonards (1877) 1 PD 154 In Re the Goods of Coster (Deceased) “Now, where a will is shewn to have been in the custody of a testator, and is not found at his death, the well-known presumption arises that the will has been destroyed by the testator for the purpose of revoking it, but of course that presumption may be rebutted by the facts. Although presumptio juris, it is not a presumption de jure, and of course the presumption will be more or less strong according to the character of the custody which the testator had over the will.”

33. Thierman Estate v. Thurmann & Ors. (2013) BCSC 503 a. Whether the terms of the will itself were reasonableb. Whether the testator continued to have a good relationship with the beneficiaries identified in the copy will which is propounded in the actionc. Whether the personal effects of the deceased were destroyed prior to the search for the will being carried outd. The nature and character of the deceased in taking care of personal effects

34. e. Whether there were any dispositions of property that might support or contradict the terms of the copy sought to be admitted to probate f. Statements made by the testator which confirm or contradict the terms of the will g. Whether there is evidence that the testator understood the consequences of not having a will and the effects of intestacy h. Whether the testator made statements to the effect that he had a will

35. 4. RIVAL APPLICATIONS

36. Order 79, rule 5(3) of the Rules of the Superior Courts: 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.

37. 5. THE PRESUMPTION OF DEATH

38. 6. THE PRESUMPTION OF DUE EXECUTION

39. Section 78 of the Succession Act 1965 It shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction. 2. Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.

40. an intention to do some formal act must be established and; • (b)there must be an absence of credible evidence that due formality was not observed.

41. 7. Setting Aside a Caveat

42. In the Matter of the Estate of Charles Gillespie Deceased(High Court, 13 July 2015)

43. “there is simply no way that he would have been in the position to travel to Scotland”

44. 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.”

45. Re Nevin deceased (unreported, High Court, 13th March, 1997) “… 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….”

46. “…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.”

47. Miller’s Irish Probate Irish Practice (1900, Maxwell) “to compel the caveator either to take contentious proceedings or to abandon his claim to a grant”.

48. 8. Admitting a Number of Testamentary Documents to Proof

49. 9. Revocation of a Grant

50. Section 27(2) of the Succession Act 1965The High Court shall have power to revoke, cancel or recall any grant of administration