Circuit Court Rules

ORDER 50

PROBATE ACTIONS

1. (a) Any person desirous of taking proceedings in the court for the purpose of obtaining a grant, or revocation of a grant, of probate or letters of administration shall issue a civil bill in the form prescribed in Form 2G of the Schedule of Forms; such civil bill shall be headed with the words ‘Testamentary Civil Bill.’ Save in relation to proceedings aforementioned, any person desirous of taking proceedings in the court pursuant to the provisions of the Succession Act, 1965 shall issue a civil bill in the form prescribed in Form 2H of the Schedule of Forms; such civil bill shall be headed with the words ‘Succession Law Civil Bill’. On issuing a testamentary civil bill the plaintiff shall, if no caveat has already been lodged, lodge a caveat in the Probate Office entitled in the estate of the deceased person. Following the issuing of the testamentary civil bill, details of the lodgment of the caveat shall be endorsed thereon by the Probate Officer prior to service thereof. Thereafter, the caveat lodged in the matter will continue in force until the Probate Office is satisfied that the proceedings have been completed whether determined, discontinued or otherwise.

[SI 312/07]

For the purposes of this rule, ‘the Probate Office’ means the Probate Office or the relevant District Probate Registry.

(b) The issue of a testamentary civil bill shall be preceded by the filing of an affidavit made by the plaintiff, or, if more than one plaintiff, then by one of them, verifying the claim, and specifying the names and residences of the next-of-kin, and of such persons as may be entitled under an intestacy to any interest in the assets of the alleged testator or intestate in the said civil bill named.

2. In any such action the indorsement shall show whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next-of-kin, heir-at-law, devisee, or in what other character.

3. Where any person shall have lodged a caveat against the grant of probate or Letters of Administration, and proceedings are taken to obtain such a grant, that person shall be a defendant.

4. In proceedings for the revocation of probate or Letters of Administration, the person applying for such revocation shall be plaintiff, and the person to whom such grant has been made shall be a defendant.

5. If upon the hearing of any probate action it shall appear to the Judge that any person or persons not already a plaintiff or defendant therein ought to be made a party or parties to the suit, he may adjourn the proceedings and direct that such person or persons shall be made parties thereto by amendment of the civil bill.

6. Any of the next-of-kin of any alleged testator or intestate, or any beneficiary of any alleged testator, may appear at the hearing of any probate action although he may not have been made a party to the same or served therein.

7. In any probate action any defendant may propound a will by way of counterclaim.

8. Any party may rely on wills alternatively in his pleadings.

9. In probate actions the plaintiff and defendant, within 10 days of the entry of an appearance on the part of the defendant, shall respectively file affidavits as to scripts, whether they have or have not any script in their possession. Such affidavits shall be in the form set out at Form 28 in the Schedule of Forms with such variations as circumstances may require.

10. Every script in the custody or under the control of the party making the affidavit shall be annexed thereto, and deposited therewith in the office.

11. No party to the cause, or his solicitor, shall be at liberty, except by leave of the court, to inspect the affidavits as to scripts, or the scripts annexed thereto, filed by any party to the cause, until his own affidavit as to scripts shall have been filed.

12. The party opposing a will may with his defence give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not in any event be liable to pay the costs of the other side unless the Judge shall be of opinion that there was no reasonable ground for opposing the will.

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