THE PROBATE OFFICE
I. Application for probate or letters of administration
3. Applications for probate or letters of administration may be made at the Probate Office in all cases. Such applications may be made in accordance with Part XXIX of this Order, or in accordance with Order 117A, rule 5, as the case may be.
4. The Probate Officer shall not allow probate or letters of administration to issue until all the inquiries which he may see fit to institute have been answered to his satisfaction. The Probate Officer is, notwithstanding, to afford as great facility for obtaining grants of probate or administration as is consistent with a due regard to the prevention of error or fraud.
5. (1) In determining to whom letters of administration of the estate of a person who died on or after the 1st of January, 1967, wholly intestate and domiciled in Ireland shall be granted, the persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority, namely:
(e) the father or mother of the deceased or where the presumption contained in section 4A(2) of the Succession Act, 1965 (inserted by section 29 of the Status of Children Act, 1987) applies, the mother;
(2) The personal representative of any of the persons herein before mentioned (other than the nominee of the State) shall have the same right to a grant as the person whom he represents, subject to sub-rule (9)(b) hereof which provides that live interests be preferred to dead interests.
(3) 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.
(4) If all persons entitled to a grant under the foregoing provisions of this direction have been cleared off a grant may be made to a creditor of the deceased or, subject to sub-rule (9)(b) hereof, the personal representative of a creditor.
(6) Where the deceased died on or after the 1st day of January, 1967, domiciled in Ireland, leaving a will appointing no executor, or appointing an executor or executors who have been cleared off by death, renunciation, citation, or otherwise, the person, or persons entitled to a grant of administration with will annexed shall be determined in accordance with the following order of priority, namely:
(c) any other residuary legatee or devisee or, subject to sub-rule (9)(b) hereof, which provides that live interests be preferred to dead interests, the personal representative of any such residuary legatee or devisee;
(e) where the residue is not in terms wholly disposed of, the Probate Officer may, if he is of opinion that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for a grant, allow a grant to be made to any legatee or devisee entitled to, or to share in, the estate so disposed of, without regard to the person entitled to share in any residue not disposed of by the will;
(f) where the residue is not wholly disposed of by the will, any person (other than a creditor) entitled to a grant in the event of a total intestacy according to the order of priority set out in sub-rules (1) to (5);
(g) any legatee or devisee or any creditor or, subject to sub-rule (9)(b), the personal representative of any such person.
(7) Where a gift to any person fails by reason of section 82 of the Succession Act, 1965 (which provides that gifts to attesting witnesses or their spouses shall be void) such person shall not have any right to a grant as a beneficiary named in the will but this is without prejudice to his right to a grant in any other capacity.
(b) a grant of administration intestate or with will annexed of the immovable estate may be made by the Probate Officer in accordance with the law which would have been applicable if the deceased had died domiciled in Ireland;
(c) nothing in this sub-rule shall be construed as prejudicially affecting any power which might otherwise be exerciseable, if no executor is named in the will and if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, of making a grant of probate to that person.
(b) unless the court or Probate Officer otherwise directs a grant shall be given to a living member of a class entitled thereto in preference to the personal representative of a member of such class who has died after the deceased;
(c) unless the court or Probate Officer otherwise directs a grant shall be given to a person not under legal disability in preference to the committee or guardian of a person under a legal disability equally entitled provided that in the case of an application by the committee of a person under a legal disability the court or Probate Officer shall, before a grant is given, consult the Registrar of Wards of Court.
(11) Where the only person entitled to the estate of the deceased, whether under a will or on intestacy, has assigned his whole interest in the estate, the assignee shall replace the assignor in the order of priority for a grant.
(12) Where a person is entitled to the beneficial interest in the whole estate of a deceased, administration may on the renunciation and nomination of that person be granted to the person, or jointly to the persons, who would be entitled to the estate or to a share in the estate of the person so renouncing if that person had died intestate.
(13) Where the parents of a deceased are entitled to the beneficial interest in the whole of the estate of the said deceased, administration may on the renunciation and consent of those parents be granted to the child or jointly to the children nominated by the parents.
(15) When, on the death of a personal representative of a deceased without having fully administered the estate, it is necessary to grant administration of the unadministered estate of the deceased, the rules that shall apply to the ascertainment of the new grantee shall be those that apply on an application for an original grant.
(16) In determining to whom a grant of administration intestate or with will annexed may be made in the case of a person who died prior to the 1st day of January, 1967, the rules heretofore in force applicable to such a case shall be observed.
II. Execution of a will
6. If there be no attestation clause to a will presented for a probate, or administration with will annexed, or if the attestation clause thereto be insufficient, the Probate Officer shall require an affidavit from at least one of the subscribing witnesses, if they or either of them be living, to prove that the statutory provisions in reference to the execution of wills were in fact complied with. A note signed by the Probate Officer shall be made on the engrossed copy will annexed to the probate or administration to the effect that affidavits of due execution, or as the case may be, have been filed.
7. If on perusing such affidavits as are filed it appears to the Probate Officer, that the statutory provisions applicable were not complied with, the Probate Officer shall refuse probate of the purported will.
8. If both the subscribing witnesses are dead, or if from other circumstances no affidavit can be obtained from either of them, resort shall be had to other persons (if any) who may have been present at the execution of the will, but if no affidavit of any such other person can be obtained, evidence on affidavit shall be procured of the fact and of the handwriting of the deceased and the subscribing witnesses and also of any circumstances which may raise a presumption in favour of the due execution.
9. If, on perusing the affidavit or affidavits setting forth the facts of the case, it appears doubtful whether the will has been duly executed, the Probate Officer shall require the parties to bring the matter before the court.
III. Interlineations and alterations
10. Interlineations and alterations are invalid unless they existed in the will prior to its execution, or, if made afterwards, unless they have been executed and attested in the mode required by law, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto.
11. When interlineations or alterations appear in the will (unless duly executed, or recited in, or otherwise identified by, the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution shall be filed, except when the alterations are of but small importance, and are evidenced by the initials of the attesting witnesses.
IV. Erasures and obliterations
12. Erasures and obliterations are not to prevail unless proved to have existed in the will prior to its execution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto. If no satisfactory evidence can be adduced as to the time when such erasures and obliteration’s were made, and the words erased or obliterated be not entirely effaced, but can upon inspection of the paper be ascertained, they must form part of the probate. In every case of words having been erased or obliterated which might have been of importance, an affidavit shall be required.
V. Documents referred to in a will
13. If a will contains a reference to any deed, paper, memorandum, or other document, of such a nature as to raise a question whether it ought, or ought not, to form a constituent part of the will, such deed, paper, memorandum, or other document shall be produced, with a view to ascertaining whether it be entitled to probate; and if not produced, its non-production shall be accounted for.
VI. Appearance of the paper
15. If there are any vestiges of sealing-wax or wafers, or other marks, upon the testamentary papers, leading to the inference that a paper, memorandum, or other document has been annexed, or attached to the same, such paper, memorandum, or other document shall be produced, and if not produced, its non-production shall be accounted for.
VII. Pencil writing on wills
16. When a will is written in pencil, or when any pencil writing appears on a will, script, or other document filed in the Probate Office, a facsimile copy of the will, script, or other document, or of the pages or sheets thereof containing the pencil writing, shall also be filed, with those portions written in red ink which appear in pencil in the original.
VIII. Application by trust corporation
18. The authorisation of an official to swear such affidavit shall, in the case of a trust corporation having a board of governors, board of directors, or other governing body, be made by resolution of such board of governors, board of directors or other governing body, and in every other case shall be made by resolution of the trust corporation.
19. With such an application by a trust corporation there shall be lodged a copy (sealed with the seal of such trust corporation) of the resolution authorising an official to swear the affidavit necessary to obtain the grant. Where such a copy as aforesaid has already been lodged with an earlier application it shall thereafter be sufficient to lodge a photostat of such copy.
IX. Limited administration
20. Limited administration shall not be granted unless every person entitled to the general grant has consented or renounced, or has been cited and failed to appear, unless the court or Probate Officer otherwise directs. In this rule the word ‘limited’ means limited to part only of the assets or estate of the deceased.
X. Administration under the Succession Act, 1965
22. Whenever the court, under the Succession Act, 1965, section 27, appoints as administrator someone other than a person who would otherwise be entitled to the grant, the fact that an order under the section has been made shall be stated in the oath of the administrator, in the grant of administration and in the administration bond.
XI. Grant to an attorney
23. In the case of a person residing out of, or about to leave the jurisdiction of the court, or who, in the opinion of the court or the Probate Officer, is suffering from a severe continuing physical disability, administration, or administration with the will annexed, may be granted to his attorney, acting under a power of attorney.
XII. Grant to a guardian
25. In a case where any infant has not a testamentary guardian or a guardian appointed by the court, or by or under the provisions of the Guardianship of Infants Act, 1964, a guardian shall be assigned by order of the court or of the Probate Officer. The application for such order shall be grounded on an affidavit showing as nearly as possible the amount of the assets, the age of the infant, and with whom he resides, that the proposed guardian is either the nearest relation of the infant, or that the nearest relation has renounced his right to the guardianship, or is consenting to the assignment of the proposed guardian, and that such proposed guardian is ready to undertake the guardianship. On such application the court or Probate Officer shall have regard to the expressed wishes of any infant over the age of 12 years.
XIII. Grant to a committee
27. In a case where a person of unsound mind has not a committee appointed by the court, a grant may issue to such person as the Probate Officer may by order assign with the consent of the Registrar of Wards of Court. The application for such order shall be grounded on an affidavit of the applicant showing the amount of the assets, the age and residence of the person of unsound mind and his relationship to the applicant together with an affidavit of a medical practitioner relating to the incapacity of such person.
XIV. Administrator’s oath
28. (1) The oath of an administrator shall be so worded as to clear off all persons having a prior right to the grant. Where there are prior interests the grant shall show on its face how they have been cleared off.
XV. Administration bond
29. Administration bonds shall be attested by the Probate Officer or Assistant Probate Officer or by a District Registrar, or by a commissioner or other person now or hereafter to be authorised to take affidavits; but in no case are they to be attested by the solicitor or agent of the party who executes them. The signature of the administrator to such a bond, if not taken in the Probate Office, shall be attested by the same person who administers the oath to such administrator unless the court or the Probate Officer shall otherwise order.
32. The form of administration bond specified in the Forms 4 and 5 in Appendix Q, Part I is the form prescribed by the President of the High Court for use in the case of estates of persons dying on or after the 1st January, 1967. In the case of estates of persons dying before 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.
XVI. Issue of grant
36. The Probate Officer may, in cases where he deems it necessary, require proof, in addition to the oath of the executor or administrator, of the identity of the deceased, or of the party applying for the grant.
37. Every will, or copy of a will, exhibited in an oath of an executor or administrator with will annexed, shall be marked by such executor or administrator, and by the person before whom he is sworn. Such marking shall be made on the back of the will or elsewhere so as to be clearly distinguishable from the will itself and its attestation.
38. No person who renounces probate of a will or letters of administration of the estate of a deceased person, in one character, shall be allowed to obtain representation to the same deceased in another character, unless the court shall otherwise order.
39. Order 40, Part 1, shall apply to affidavits filed or used in the Probate Office.
40. In every case where an affidavit is made by a subscribing witness to a will for the purpose of proving the execution thereof, such subscribing witness shall depose as to the mode in which the said will was executed and attested.
41. Any person intending to oppose the issuing of a grant of probate or letters of administration shall either personally or by his solicitor, lodge a caveat in the Probate Office, or in a District Registry.
43. Every caveat shall state the name and address of the person on whose behalf the same is lodged, and the registered place of business of the solicitor lodging the same, or if there be no solicitor, an address for service at which the caveat can be warned, and where the case is so, the caveat shall state that it is lodged only with a view to seeing that the security is sufficient.
44. Any person who shall knowingly lodge, or cause to be lodged in the Probate Office, a caveat in the name of a fictitious person, or with a false address of the person on whose behalf it purports to be lodged, shall be deemed guilty of a contempt of court.
45. The Probate Officer shall, immediately upon a caveat being lodged, send notice thereof to the District Registrar of the district in which it is alleged the deceased resided at the time of his death, or in which he is known to have had a fixed place of abode at the time of his death.
47. All caveats shall be warned from the Probate Office. The warning shall be served by delivery of a copy thereof at the place mentioned in the caveat as the registered place of business of the solicitor, or address for service of the person who lodged the caveat, as the case may be, within 14 days of the date thereof; and otherwise shall be deemed inoperative unless the court or the Probate Officer shall make a special order on the subject.
48. In addition to the service of the warning the Probate Officer shall, on the same day on which the warning is signed by him, send by post a copy of it to the solicitor or person who lodged the caveat at the registered place of business or address for service therein mentioned and on the same day a memorandum of such posting shall be entered in the book to be kept for that purpose.
49. The warning to a caveat shall state the name and interest of the party on whose behalf the same is issued; and if such person claims under a will, it shall state the date, if any, of such will, and in any event state the registered place of business of the solicitor lodging the same, or if there be no solicitor, an address for service.
50. An appearance to a warning shall be entered in the Probate Office within 14 days of the service thereof, provided that the time for appearance may be considered to be extended until action on default has been taken under rule 51.
51. In order to clear off a caveat, when no appearance has been entered to a warning duly served, an affidavit of the service of the warning in manner required by rule 47 and a certificate of non-appearance shall be filed.
52. A citation shall not issue under the seal of the court until an affidavit, in verification of the averments it contains, has been filed in the Probate Office. All citations shall issue from the Probate Office.
54. A citation shall not be signed by the Probate Officer unless and until a caveat shall have been entered against any grant being made in respect of the estate of the deceased to which such citation relates, and notice thereof shall be sent to the District Registrar of the district in which the deceased appears to have had a residence at the time of his death.
55. A citation shall be written, typed or printed, and the party extracting the same, or his solicitor, shall take it together with a copy thereof to the Probate Office and there deposit the copy, and get the citation signed and sealed. The citation shall contain a statement of the registered place of business of the solicitor extracting the same, or if extracted by a party in person, an address for service.
56. An appearance to a citation shall be entered in the Probate Office within 14 days of the service thereof, provided that the time for appearance may be considered to be extended until action on default has been taken under rule 57.
57. If the party cited to accept or refuse probate or administration having been served with a citation, shall not appear within the time limited by the citation, or if the time for appearing shall be extended by the court, or the Probate Officer, and such party shall not appear within such extended time, his non-appearance shall be deemed and taken as and for a renunciation of his right to probate or administration, as the case may be, and the party citing shall be entitled to obtain from the Probate Officer a side-bar order in the estate of the deceased to the following effect:’on reading citation and affidavit of it is ordered that the non-appearance of C.D. (naming the party cited) be taken as and for a renunciation of his right to probate (or administration)’.
58. A party cited to accept or refuse probate or administration and desiring to accept, shall so state on entering his appearance, and thereupon the party citing shall be entitled to obtain from the Probate Officer a side-bar order in the estate of the deceased to the following effect: ‘On reading the citation, and (party cited) having in his appearance stated his desire to accept probate (or administration) let him extract same within 14 days from the date of service of this order upon him and in case he shall not do so within that time, or within such further time (if any) as the court or the Probate Officer shall allow for that purpose, let his not doing so be deemed and taken as and for a renunciation of his right to probate (or administration)’. A copy of such side-bar order shall be served forthwith on the party appearing.
XXI. Production of will
59. Applications for an order for the production of papers or writings purporting to be testamentary may be made to the court by motion on affidavit, whether a suit is or is not pending. If it can be shown on affidavit that a testamentary paper is in the possession, within the power, or under the control of any person, a subpoena for the production of the same may be issued by order of the Probate Officer.
60. Any person bringing in any paper or writing purporting to be testamentary, in obedience to subpoena, is to take it in the first instance to the Probate Office, where the person designated in writing for that purpose by the Probate Officer shall prepare and sign a minute recording the delivery thereof.
61. The minute is to be entered in a book to be kept for that purpose; and the fee for the entry, and a further fee for filing each testamentary paper, will then be payable. If these fees should not be paid by the person bringing in the will, the same are to be charged to the person who may first apply to the Probate Office to make use of the will so brought in. In case the person bringing in a will may desire to have a voucher for its delivery to the Probate Office, he may take an attested copy of the minute on paying the prescribed fee.
XXII. Blind and illiterate testator
63. The Probate Officer shall not allow probate of the will or administration with the will annexed, of any blind or illiterate person, to issue, unless he is satisfied by evidence on affidavit, that the will was read over to the testator before its execution, or that the testator had at such time knowledge of its contents.
XXIII. Alteration in grant
64. Where any alteration is made in a grant which has issued from a District Registry, or where any such grant is revoked, and the volume of the printed calendar containing the entry of such grant has been forwarded to the District Registrars, notice of such alteration or revocation shall without delay be forwarded by the Probate Officer to all the District Registrars.
XXIV. Notice to Attorney General
65. In all cases where application is made for letters of administration (intestate or with a will by which all the estate is not disposed of annexed) of the estate of a person dying or presumed to have died without known relation, notice of such application shall be given to the Attorney General, in order that he may determine whether it will be expedient to intervene on the part of the State; and no grant is to be issued until he has signified the course it will be proper to take.
66. (1) In the case of a person dying intestate on or after the 1st day of January, 1967, without any known relation, a citation shall be issued directed to the next-of-kin (if any) and all persons having or claiming to have any interest in the estate of the deceased, and (unless such citation is being issued by the State) to the Attorney General.
(2) In the case of a person dying intestate before the 1st day of January, 1967, without any known relation a citation shall be issued directed to such persons as the rules heretofore in force prescribed.
(3) Service of such citation shall be effected in such manner as the court or Probate Officer may direct. Such citation shall also be served on the Attorney General, and notice of his intention not to intervene shall be obtained.
XXV. Transmission of papers
67. When an application is made to the court, in relation to an application for a grant at a District Registry, the District Registrar shall transmit all relevant original papers and documents to the Probate Office; and the same, after the directions of the court have been taken, shall on the application of the parties (unless the court shall otherwise direct) be returned to the District Registrar, together with an attested copy of the order of the court.
68. Original papers shall be forwarded to the Probate Office whenever an inspection of them is necessary to enable the Probate Officer to answer the questions submitted to him by a District Registrar. Papers and other documents may be transmitted by a District Registrar to the Probate Officer and by the Probate Officer to a District Registrar by registered post.
XXVI. Copies of wills
69. Copies of wills to be annexed to the probate or letters of administration shall be written in a legible hand or printed or typewritten or, in suitable cases, photocopied as the Probate Officer shall direct.
70. Copies of wills and other testamentary documents shall be bespoken in the Probate Office. Every such copy required to be certified shall be certified under the hand of the Probate Officer or some person in the Probate Office designated in writing for such purpose by the Probate Officer.
XXVII. Production of documents
72. (1) If a will or other document filed in the Probate Office is required to be produced at any other place, application shall be made for that purpose in sufficient time to allow for making and examining a copy of such will or other document.
(2) On the making of such an application, there shall (unless the court or the Probate Officer otherwise directs) be made a copy of such will or other document, which copy shall be examined with the original, and such examined copy shall be deposited in place of the original pending its return.
(3) When the will or other document is required for production in the High Court on Circuit, or in the Circuit Court, such will or other document may, by direction of the Probate Officer, be sent by registered post to the appropriate County Registrar.
XXIX. Personal application for grant
78. An application for a grant of probate or administration in a case which has already been before the court (on motion or otherwise) shall not be entertained as a personal application, but shall be made through a solicitor, unless the Probate Officer otherwise directs.
80. The papers necessary to lead to the grant applied for shall be prepared and sworn in the Probate Office. However, an applicant may bring such papers or any of them, filled up, and if correct they may be received, but if already sworn, shall be resworn. Any papers once received in the Probate Office shall not be given out unless under special circumstances by permission of the Probate Officer.
82. The time fixed by a warning or citation for entering an appearance, or by subpoena to bring in a testamentary paper, shall in all cases be exclusive of any day on which the Probate Office is lawfully closed.
83. The Probate Officer shall be at liberty to act upon the certificate of the Deputy or Assistant-Deputy Keeper of the Records (or in their absence of an officer of the Public Records Office nominated by the Deputy Keeper for that purpose), that no will appears to have been proved, or that no administration appears to have been granted of the goods or estate of a deceased person, or that no unproved will or testamentary document of such deceased person appears amongst the Records during any specified period, included in the period for which the records of probates, administrations, and unproved wills shall have been transferred to the Public Record Office, save such as shall be mentioned in such certificate, for all intents and purposes, as if a search had been made in the said office by an officer of the Probate Office.
84. The Certificate required to be given by the proper officer of the court, under the Customs and Inland Revenue Act, 1881, section 30, as amended by the Capital Acquisitions Tax Act, 1976, for the purposes of the Finance Act, 1894, shall be in such form as the Probate Officer shall from time to time prescribe according to the circumstances of the case.
86. In the case of the estates of persons dying on or after the 1st January, 1967, the forms in Appendix Q, Part I shall, where applicable, be used. In the case of estates of persons dying before the 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.
87. 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.
88. 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.