|
|
|
|
|
|
| 24.1 |
In general, contentious probate proceedings follow the same pattern as an ordinary claim but there are important differences and Part 57 and PD 57 should be carefully studied. All probate claims are allocated to the multi-track. Particular regard should be had to the following:
|
| |
|
(1) |
The claim form must be issued out of Chancery Chambers or out of the Chancery District Registries, or if the claim is suitable to be heard in the county court, a county court where there is also a Chancery District Registry, or the Central London County Court.
| |
(2) |
A defendant must file an acknowledgment of service. An additional 14 days is provided for doing so.
| |
(3) |
Save where the court orders otherwise, the parties must at the outset of proceedings lodge all testamentary documents in their possession and control with the court. At the same time parties must file written evidence describing any testamentary document of the deceased of which they have knowledge, stating, if any such document is not in the party's possession or control, the name and address, if known, of the person in whose possession or under whose control the document is. In the case of a claimant, these materials must be lodged at the time when the claim form is issued. In the case of a defendant, these materials must be lodged when service is acknowledged. If these requirements are not complied with it is likely that the claim will not be issued and, correspondingly, that the acknowledgment of service will not be permitted to be lodged.
| |
(4) |
The court will generally ensure that all persons with any potential interest in the proceedings are joined as parties or served with notice under Part 19.8A.
| |
(5) |
A default judgment cannot be obtained in a probate claim. Where, however, no defendant acknowledges service or files a defence, the claimant may apply for an order that the claim proceed to trial and seek a direction that the claim be tried on written evidence.
| |
(6) |
If an order pronouncing for a will in solemn form is sought under Part 24, the evidence in support must include written evidence proving due execution of the will. In such a case, if a defendant has given notice under rule 57.7(5) that he raises no positive case but requires that the will be proved in solemn form and that, to that end, he wishes to cross examine the attesting witnesses, then the claimant's application for summary judgment is subject to the right of such a defendant to require the attesting witnesses to attend for cross examination.
| |
(7) |
A defendant who wishes to do more than test the validity of the will by cross examining the attesting witnesses must set up by counterclaim his positive case in order to enable the court to make an appropriate finding or declaration as to which is the valid will, or whether a person died intestate or as the case may be.
| |
(8) |
The proceedings may not be discontinued without permission. Even if they are compromised, it will usually be necessary to have an order stating to whom the grant is to be made, either under rule 57.11 (leading to a grant in common form), or after a trial on written evidence under paragraph 6.1(1) of PD 57 (leading to a grant in solemn form) or under section 49 of the Administration of Justice Act 1985ActsActs and paragraph 6.1(3) of PD 57 (again leading to a grant in solemn form). Practitioners should refer to PF38CH and adapt as appropriate.
|
|
| 24.2 |
When the court orders trial of a contentious probate claim on written evidence, or where the court is asked to pronounce in solemn form under Part 24, it is normally necessary for an attesting witness to sign a witness statement or swear an affidavit of due execution of any will or codicil sought to be admitted to probate. The will or codicil is at that stage in the court's possession and cannot be handed out of court for use as an exhibit to the witness statement or affidavit, so that the attesting witness has to attend at the Royal Courts of Justice.
|
| 24.3 |
Where an attesting witness is unable to attend the Royal Courts of Justice in order to sign his or her witness statement or swear his or her affidavit in the presence of an officer of the court, the solicitor concerned may request from Room TM7.09, a photographic copy of the will or codicil in question. This will be certified as authentic by the court and may be exhibited to the witness statement or affidavit of due execution in lieu of the original. The witness statement or affidavit must in that case state that the exhibited document is an authenticated copy of the document signed in the witness' presence.
|
| 24.4 |
When a probate claim is listed for trial outside London, the solicitor for the party responsible for preparing the court bundle must write to Room TM7.09 and request that the testamentary documents be forwarded to the appropriate District Registry.
|
|
|
| 24.5 |
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 in the Chancery Division will be allocated to the Multi-Track and are issued by way of a Part 8 claim. Ordinarily they will be tried by the Master unless an order is made transferring the claim to a county court for trial. They are governed by Part 57 and PD 57.
|
| 24.6 |
The written evidence filed by the claimant with the claim form must exhibit an official copy of the grant of probate or letters of administration together with every testamentary document in respect of which probate or letters of administration was granted.
|
| 24.7 |
A defendant must file and serve acknowledgment of service not later than 21 days after service of the Part 8 claim form. Any written evidence (subject to any extension agreed or directed) must likewise be served and filed no later than 21 days after service.
|
| 24.8 |
The personal representatives of the deceased are necessary defendants to a claim under the 1975 Act and the written evidence filed by a defendant who is a personal representative must comply with paragraph 16 of PD 57.
|
| 24.9 |
On the hearing of a claim under the 1975 Act, the personal representatives must produce the original grant of representation to the deceased's estate. If the court makes an order under the Act, the original grant together with a sealed copy of the order must, under paragraph 18.2 of PD 57, be sent to the Principal Registry of the Family Division, First Avenue House, 42-49 High Holborn, London WC1V 6NP for a memorandum of the order to be endorsed on or permanently annexed to the grant.
|
| 24.10 |
Where claims under the 1975 Act are compromised the consent order filed must comply with paragraph 9.14 of this Guide.
|