72. Contentious Probate Proceedings.
ORDER 72
CONTENTIOUS PROBATE PROCEEDINGS
1. Application and interpretation. (O. 72 r. 1)
(1) This Order applies to probate causes and matters and the other provisions of these rules apply to those causes and matters subject to the provisions of this Order.
(2) In these rules "probate action" means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for a revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious.
(3) In this Order "will" includes a codicil.
2. Requirements in connection with issue of writ. (O. 72 r. 2)
(1) A probate action must be begun by writ, and the writ must be issued out of the Registry.
(2) Before a writ beginning a probate action is issued it must be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates.
(3) A writ beginning an action for the revocation for the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under rule 7 has been issued or the probate or letter of administration, as the case may be, has or have been lodged in the Registry.
3. Service of writ out of the jurisdiction. (O. 72 r. 3)
(1) Subject to paragraph (2), service out of the jurisdiction of a notice of writ, by which a probate action is begun is permissible with the leave of the Court.
(2) Order 11, rules 3 and 4, shall apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 to 2 of that Order.
4. Intervener in probate action. (O. 72 r. 4)
(1) A person not a party to a probate action may apply to the Court for leave to intervene in a probate action.
(2) An application under this rule must be made by summons supported by an affidavit showing the interest of the applicant in the estate of the deceased.
(3) An applicant who obtains leave to intervene in a probate action shall not be entitled to be heard in the action unless he enters an appearance therein.
(4) Where the Court grants leave under this rule, it may give such directions as to the service of pleadings, the filing of an affidavit of testamentary scripts or other matters as it thinks necessary.
5. Citation to see proceedings. (O. 72 r. 5)
(1) On the application of the plaintiff, or of any other party who has pleaded in a probate action, a citation may be issued against any person not a party to the action who has an adverse interest to the applicant notifying him that if he does not enter an appearance in the action judgment may be given therein without further notice to him.
(2) Where a person on whom a citation under this rule is served fails to enter an appearance in the action, the party on whose application the citation was issued shall not be entitled to be heard at the trial of the action without the leave of the Court unless he has filed an affidavit proving due service of the citation on that person.
6. Entry of appearance. (O. 72 r. 6)
(1) The office for entry of appearance in a probate action is in all cases the Registry and Order 12, in its application to such an action, shall have effect accordingly.
(2) Without prejudice to paragraph (1), Order 12, rules 1, 2 and 3 shall apply to the entry of appearance by a person authorized to intervene in a probate action, and by a person cited under rule 5, as if–
(a) that person were a defendant; and
(b) the parties to the action (in the case of an intervener) or the party at whose instance the citation was issued (in the case of the person cited) were the plaintiff.
7. Citation to bring in grant. (O. 72 r. 7)
In an action for the revocation of the grant of probate of the will, or letters of administration of the estate of a deceased person, a citation against the person to whom the probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Registry the probate or letters of administration, as the case may be, may be issued on the application of the plaintiff.
8. Citations. (O. 72 r. 8)
(1) A citation under rule 5 or 7 must be issued out of the Registry and must be settled by the Court before it is issued.
(2) Before such a citation is issued an affidavit verifying the statements of fact to be made in the citation must be sworn by the person applying for it to be issued:
Provided that the Court may in special circumstances allow the affidavit to be sworn by that person’s solicitor.
(3) Issue of a citation takes place upon its being sealed by an officer of the Registry.
(4) Without prejudice to Order 62, rule 5, a citation under rule 5 of 7 must be served personally on the person cited.
(5) Service out of the jurisdiction of a citation under rule 5 or 7 is permissible but, in the case of a citation under rule 7, only with the leave of the Court.
(6) Order 11, rule 4, shall apply in relation to an application for the grant of leave under paragraph (5) as they apply in relation to an application for the grant of leave under rule 1 or 2 of the Order.
(7) An order granting leave to serve a citation under rule 7 out of the jurisdiction must limit a time within which the person to be served with the citation must comply with it.
(8) Order 11, rules 5, 6 and 8, shall apply in relation to a citation under rule 7 as they apply in relation to notice of a writ.
9. Affidavit of testamentary scripts. (O. 72 r. 9)
(1) Unless the Court otherwise directs, the plaintiff and every defendant who has entered an appearance in a probate action must swear an affidavit–
(a) describing any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and
(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person; and any such script which is in the possession or under the control of the deponent must be annexed to his affidavit.
(2) An affidavit required by this rule (together with any testamentary script) must be filed within 14 days after the entry of appearance by a defendant to the action or, if no defendant enters an appearance therein and the Court does not otherwise direct, before the action is set down for trial.
(3) Where any testamentary script required by this rule to be filed or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be filed and the words which appear in pencil in the original must be underlined in red ink in the copy.
(4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed under this rule by any other party to the action, or any testamentary script annexed thereto, unless and until an affidavit sworn by him containing the information referred to in paragraph (1) has been filed.
(5) In this rule "testamentary script" means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.
10. Default of appearance. (O. 72 r. 10)
(1) Order 13 shall not apply in relation to a probate action.
(2) Where any of several defendants to a probate action fails to enter an appearance, the plaintiff, upon filing an affidavit proving due service of the writ, or notice of the writ, on that defendant may, after the time limited for appearing, proceed with the action as if that defendant had entered an appearance.
(3) Where the defendant, or all the defendants, to a probate action, fails or fail to enter an appearance, and none of the persons (if any) cited under rule 5 has entered an appearance, then, unless on the application of the plaintiff the Court orders the action to be discontinued, the plaintiff may after the time limited for appearing by the defendant apply to the Court for leave to set down the action for trial.
(4) Before making an application for the grant of leave under paragraph (3) the plaintiff must file an affidavit proving due service of the writ, or notice of the writ, on the defendant and of the citation, if any.
(5) Where the Court grants leave under paragraph (3), it may order the plaintiff to file an affidavit of testamentary scripts under rule 9.
11. Service of statement of claim. (O. 72 r. 11)
The plaintiff in a probate action must, unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, serve a statement of claim on every defendant who enters an appearance in the action and must do so before the expiration of 6 weeks after entry of appearance by that defendant or of 8 days after the filing by him of an affidavit under rule 9, whichever is the later.
12. Counterclaim. (O. 72 r. 12)
Notwithstanding anything in Order 15, rule 2(1), a defendant to a probate action who alleges that he has any claim or is entitled to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person which is the subject of the action must add to his defence a counterclaim in respect of that matter.
13. Contents of pleadings. (O. 72 r. 13)
(1) Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant.
(2) In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved the would be entitled to an interest in the estate.
(3) Without prejudice to Order 18, rule 7, any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say–
(a) that the will was not duly executed;
(b) that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and
(c) that the execution of the will was obtained by undue influence or fraud,
shall be made by that party unless that other plea is also pleaded.
14. Default of pleadings. (O. 72 r. 14)
(1) Order 19 shall not apply in relation to a probate action.
(2) Where any party to a probate action fails to serve on any other party a pleading which he is required by these rules to serve on that other party, then, unless the Court orders the action to be discontinued, that other party may, after the expiration of the period fixed by or under these rules for service of the pleading in question, apply to the Court for leave to set down the action for trial.
15. Discontinuance. (O. 72 r. 14)
(1) Order 21 shall not apply in relation to a probate action.
(2) At any stage of the proceedings in a probate action the Court may, on the application of the plaintiff or of any party to the action who has entered an appearance therein, order the action to be discontinued on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will, or letters of administration of the estate, of the deceased person, as the case may be, which is the subject of the action be made to the person entitled thereto.
(3) An application for an order under this rule may be made by summons or by notice under Order 25, rule 7.
16. Compromise of action. (O. 72 r. 16)
Where whether before or after service of the defence in a probate action the parties to the action agree to a compromise, the action may, with the leave of the Court, be set down for trial.
17. Case for motion. (O. 72 r. 17)
(1) Where an application in a probate cause or matter is to be made to the Court by motion, the applicant must–
(a) not less than 7 clear days before the day on which the motion is to be heard, file a case for motion in the Registry, together with an affidavit verifying the statements of fact made in the case; and
(b) not less than 5 clear days before that day, serve a copy of the case and of every affidavit in support of the motion on any person entitled to be heard in opposition to the motion.
(2) A case for motion must–
(a) set out the proceedings already had in the cause or matter with the dates thereof;
(b) set out the relevant facts in a summary form; and
(c) state the relief or remedy sought by the motion.
18. Application to Court by summons. (O. 72 r. 18)
Except where these rules otherwise provide, any application to the Court in a probate cause of matter may be made by summons.
19. Form of judgments and orders. (O. 72 r. 19)
(1) Every judgment of the Court in a probate cause or matter shall be signed by the Registrar.
(2) Every order made in such a cause or matter shall be entered by an officer of the Registry in a book for the purpose.
20. Administration Pendente Lite. (O. 72 r. 20)
(1) An application under section 19 of the Probate and Administration Act for the grant of administration may be made to the Registrar by petition.
(2) An administrator to whom a grant is made under the said section 19 must at the time when he begins proceedings for taxation of his costs, or at such other time as the Registrar may direct, produce at the Registry an account (verified by affidavit) of the moneys and other property received or paid or otherwise dealt with by him in his capacity as such an administrator.
(3) Unless the Court otherwise directs, the account shall referred to the Registrar for examination and Order 59, rules 21, 22 and 25 shall with the necessary modifications apply in relation to proceedings for the examination of the administrator’s costs.
(4) Except where the remuneration of the administrator has been fixed by a Judge, the Registrar shall, on the completion of the examination of the administrator’s account, and taxation of his costs, assess and provide for the administrator’s remuneration.
ORDER 72
CONTENTIOUS PROBATE PROCEEDINGS
1. Application and interpretation. (O. 72 r. 1)
(1) This Order applies to probate causes and matters and the other provisions of these rules apply to those causes and matters subject to the provisions of this Order.
(2) In these rules "probate action" means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for a revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious.
(3) In this Order "will" includes a codicil.
2. Requirements in connection with issue of writ. (O. 72 r. 2)
(1) A probate action must be begun by writ, and the writ must be issued out of the Registry.
(2) Before a writ beginning a probate action is issued it must be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates.
(3) A writ beginning an action for the revocation for the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under rule 7 has been issued or the probate or letter of administration, as the case may be, has or have been lodged in the Registry.
3. Service of writ out of the jurisdiction. (O. 72 r. 3)
(1) Subject to paragraph (2), service out of the jurisdiction of a notice of writ, by which a probate action is begun is permissible with the leave of the Court.
(2) Order 11, rules 3 and 4, shall apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 to 2 of that Order.
4. Intervener in probate action. (O. 72 r. 4)
(1) A person not a party to a probate action may apply to the Court for leave to intervene in a probate action.
(2) An application under this rule must be made by summons supported by an affidavit showing the interest of the applicant in the estate of the deceased.
(3) An applicant who obtains leave to intervene in a probate action shall not be entitled to be heard in the action unless he enters an appearance therein.
(4) Where the Court grants leave under this rule, it may give such directions as to the service of pleadings, the filing of an affidavit of testamentary scripts or other matters as it thinks necessary.
5. Citation to see proceedings. (O. 72 r. 5)
(1) On the application of the plaintiff, or of any other party who has pleaded in a probate action, a citation may be issued against any person not a party to the action who has an adverse interest to the applicant notifying him that if he does not enter an appearance in the action judgment may be given therein without further notice to him.
(2) Where a person on whom a citation under this rule is served fails to enter an appearance in the action, the party on whose application the citation was issued shall not be entitled to be heard at the trial of the action without the leave of the Court unless he has filed an affidavit proving due service of the citation on that person.
6. Entry of appearance. (O. 72 r. 6)
(1) The office for entry of appearance in a probate action is in all cases the Registry and Order 12, in its application to such an action, shall have effect accordingly.
(2) Without prejudice to paragraph (1), Order 12, rules 1, 2 and 3 shall apply to the entry of appearance by a person authorized to intervene in a probate action, and by a person cited under rule 5, as if–
(a) that person were a defendant; and
(b) the parties to the action (in the case of an intervener) or the party at whose instance the citation was issued (in the case of the person cited) were the plaintiff.
7. Citation to bring in grant. (O. 72 r. 7)
In an action for the revocation of the grant of probate of the will, or letters of administration of the estate of a deceased person, a citation against the person to whom the probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Registry the probate or letters of administration, as the case may be, may be issued on the application of the plaintiff.
8. Citations. (O. 72 r. 8)
(1) A citation under rule 5 or 7 must be issued out of the Registry and must be settled by the Court before it is issued.
(2) Before such a citation is issued an affidavit verifying the statements of fact to be made in the citation must be sworn by the person applying for it to be issued:
Provided that the Court may in special circumstances allow the affidavit to be sworn by that person’s solicitor.
(3) Issue of a citation takes place upon its being sealed by an officer of the Registry.
(4) Without prejudice to Order 62, rule 5, a citation under rule 5 of 7 must be served personally on the person cited.
(5) Service out of the jurisdiction of a citation under rule 5 or 7 is permissible but, in the case of a citation under rule 7, only with the leave of the Court.
(6) Order 11, rule 4, shall apply in relation to an application for the grant of leave under paragraph (5) as they apply in relation to an application for the grant of leave under rule 1 or 2 of the Order.
(7) An order granting leave to serve a citation under rule 7 out of the jurisdiction must limit a time within which the person to be served with the citation must comply with it.
(8) Order 11, rules 5, 6 and 8, shall apply in relation to a citation under rule 7 as they apply in relation to notice of a writ.
9. Affidavit of testamentary scripts. (O. 72 r. 9)
(1) Unless the Court otherwise directs, the plaintiff and every defendant who has entered an appearance in a probate action must swear an affidavit–
(a) describing any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and
(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person; and any such script which is in the possession or under the control of the deponent must be annexed to his affidavit.
(2) An affidavit required by this rule (together with any testamentary script) must be filed within 14 days after the entry of appearance by a defendant to the action or, if no defendant enters an appearance therein and the Court does not otherwise direct, before the action is set down for trial.
(3) Where any testamentary script required by this rule to be filed or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be filed and the words which appear in pencil in the original must be underlined in red ink in the copy.
(4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed under this rule by any other party to the action, or any testamentary script annexed thereto, unless and until an affidavit sworn by him containing the information referred to in paragraph (1) has been filed.
(5) In this rule "testamentary script" means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.
10. Default of appearance. (O. 72 r. 10)
(1) Order 13 shall not apply in relation to a probate action.
(2) Where any of several defendants to a probate action fails to enter an appearance, the plaintiff, upon filing an affidavit proving due service of the writ, or notice of the writ, on that defendant may, after the time limited for appearing, proceed with the action as if that defendant had entered an appearance.
(3) Where the defendant, or all the defendants, to a probate action, fails or fail to enter an appearance, and none of the persons (if any) cited under rule 5 has entered an appearance, then, unless on the application of the plaintiff the Court orders the action to be discontinued, the plaintiff may after the time limited for appearing by the defendant apply to the Court for leave to set down the action for trial.
(4) Before making an application for the grant of leave under paragraph (3) the plaintiff must file an affidavit proving due service of the writ, or notice of the writ, on the defendant and of the citation, if any.
(5) Where the Court grants leave under paragraph (3), it may order the plaintiff to file an affidavit of testamentary scripts under rule 9.
11. Service of statement of claim. (O. 72 r. 11)
The plaintiff in a probate action must, unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, serve a statement of claim on every defendant who enters an appearance in the action and must do so before the expiration of 6 weeks after entry of appearance by that defendant or of 8 days after the filing by him of an affidavit under rule 9, whichever is the later.
12. Counterclaim. (O. 72 r. 12)
Notwithstanding anything in Order 15, rule 2(1), a defendant to a probate action who alleges that he has any claim or is entitled to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person which is the subject of the action must add to his defence a counterclaim in respect of that matter.
13. Contents of pleadings. (O. 72 r. 13)
(1) Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant.
(2) In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved the would be entitled to an interest in the estate.
(3) Without prejudice to Order 18, rule 7, any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say–
(a) that the will was not duly executed;
(b) that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and
(c) that the execution of the will was obtained by undue influence or fraud,
shall be made by that party unless that other plea is also pleaded.
14. Default of pleadings. (O. 72 r. 14)
(1) Order 19 shall not apply in relation to a probate action.
(2) Where any party to a probate action fails to serve on any other party a pleading which he is required by these rules to serve on that other party, then, unless the Court orders the action to be discontinued, that other party may, after the expiration of the period fixed by or under these rules for service of the pleading in question, apply to the Court for leave to set down the action for trial.
15. Discontinuance. (O. 72 r. 14)
(1) Order 21 shall not apply in relation to a probate action.
(2) At any stage of the proceedings in a probate action the Court may, on the application of the plaintiff or of any party to the action who has entered an appearance therein, order the action to be discontinued on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will, or letters of administration of the estate, of the deceased person, as the case may be, which is the subject of the action be made to the person entitled thereto.
(3) An application for an order under this rule may be made by summons or by notice under Order 25, rule 7.
16. Compromise of action. (O. 72 r. 16)
Where whether before or after service of the defence in a probate action the parties to the action agree to a compromise, the action may, with the leave of the Court, be set down for trial.
17. Case for motion. (O. 72 r. 17)
(1) Where an application in a probate cause or matter is to be made to the Court by motion, the applicant must–
(a) not less than 7 clear days before the day on which the motion is to be heard, file a case for motion in the Registry, together with an affidavit verifying the statements of fact made in the case; and
(b) not less than 5 clear days before that day, serve a copy of the case and of every affidavit in support of the motion on any person entitled to be heard in opposition to the motion.
(2) A case for motion must–
(a) set out the proceedings already had in the cause or matter with the dates thereof;
(b) set out the relevant facts in a summary form; and
(c) state the relief or remedy sought by the motion.
18. Application to Court by summons. (O. 72 r. 18)
Except where these rules otherwise provide, any application to the Court in a probate cause of matter may be made by summons.
19. Form of judgments and orders. (O. 72 r. 19)
(1) Every judgment of the Court in a probate cause or matter shall be signed by the Registrar.
(2) Every order made in such a cause or matter shall be entered by an officer of the Registry in a book for the purpose.
20. Administration Pendente Lite. (O. 72 r. 20)
(1) An application under section 19 of the Probate and Administration Act for the grant of administration may be made to the Registrar by petition.
(2) An administrator to whom a grant is made under the said section 19 must at the time when he begins proceedings for taxation of his costs, or at such other time as the Registrar may direct, produce at the Registry an account (verified by affidavit) of the moneys and other property received or paid or otherwise dealt with by him in his capacity as such an administrator.
(3) Unless the Court otherwise directs, the account shall referred to the Registrar for examination and Order 59, rules 21, 22 and 25 shall with the necessary modifications apply in relation to proceedings for the examination of the administrator’s costs.
(4) Except where the remuneration of the administrator has been fixed by a Judge, the Registrar shall, on the completion of the examination of the administrator’s account, and taxation of his costs, assess and provide for the administrator’s remuneration.
No comments:
Post a Comment