THE DISTRICT PROBATE REGISTRIES
I. Application for probate or letters of administration
2. Application for probate or letters of administration may be made at the Probate Office in all cases. Application may also be made at a District Registry in cases where the deceased, at the time of his death, had a fixed place of abode within the district in which the application is made. A District Registrar, before he entertains such application, shall ascertain that the deceased had, at the time of his death, such fixed place of abode.
4. No District Registrar or clerk in a District Registry shall directly or indirectly transact business for himself, or as the solicitor for any other person in the District Registry to which he has been appointed. The public offices of the several District Registries shall be open for business upon each of the days upon which and the hours during which it is prescribed that the offices of the High Court shall be open.
5. A District Registrar 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, particularly when applications are made in person. A District Registrar shall, notwithstanding, 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.
6. (1) In determining to whom letters of administration of the estate of a person who died on or after the 1st day of January, 1967, wholly intestate and domiciled in the Republic of 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 (8)(b) hereof which provides that life 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 matter shall be referred to the Probate Officer and 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 applicants, or, on objection having been 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 shall have been cleared off, a grant may be made to a creditor of the deceased, or, subject to sub-rule (8)(b) hereof, the personal representative of a creditor.
(6) Where the deceased died on or after the 1st January, 1967, domiciled in the Republic of 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 (8)(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 matter shall be referred to the Probate Officer, and he 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 an 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 (8)(b) the personal representative of 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) 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 a 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.
(9) Where a will is in any language other than the Irish or English language the District Registrar may by order of the Probate Officer admit it to proof in the terms of a translation thereof in the Irish or English language.
(10) 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, that assignee shall be entitled by order of the Probate Officer to replace the assignor in the order of priority for a grant.
(11) Where a person is entitled to the beneficial interest in the whole of the estate of a deceased, the Probate Officer may order that administration on the renunciation of that person be granted to the person, or jointly to the persons, nominated by him who would be entitled to the estate or to a share in the estate of the person so renouncing if he had died intestate.
(12) 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.
(14) When, on the death of the 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.
(15) 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
7. Upon receiving an application for probate or letters of administration with the will annexed, the District Registrar shall inspect the will and see whether by the terms of the attestation clause (if any) it is shown that the statutory provisions in reference to the attestation of wills were in fact complied with.
8. If there be no attestation clause in a document presented for probate or letters of administration with the will annexed or if the attestation clause be insufficient, the District Registrar 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 District Registrar shall be inserted 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.
9. If, on perusing such affidavits as are filed it appears to the District Registrar that the statutory provisions were not complied with, the District Registrar shall refuse probate of the purported will.
10. 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 due execution.
11. In any case in which a will apparently duly executed has been produced for probate or for administration with the will annexed, probate of any former will, or administration with any former will annexed, or administration to the deceased, as having died intestate shall not be granted by a District Registrar without an order of the court, or of the Probate Officer, showing that the last will is not entitled to probate. In the absence of such order the District Registrar shall communicate with the Probate Officer.
III. Interlineations and alterations
12. 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.
13. Where interlineations and 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
14. Erasures and obliteration’s 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 obliterations 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 the words having been erased or obliterated which might have been of importance, an affidavit shall be required.
V. Documents referred to in a will
15. 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
17. 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
18. When a will is written in pencil or when any pencil writing appears on a will, script or other document filed in a District Registry, a facsimile copy of the will, script or other document or 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. Doubtful cases
19. In all cases in which for any cause it is doubtful whether any will is entitled to probate, and in all cases in which a question arises whether any alteration, interlineation, erasure or obliteration ought to prevail, or whether any deed, paper, memorandum or other document ought to form part of a will, or if any doubt arises in consequence of the appearance of the paper, or on any other point, the District Registrar shall consult the Probate Officer, who may take the directions of the court or require the parties to bring the matter before the court.
20. The right of parties to letters of administration with the will annexed, and letters of administration with the will annexed de bonis non depends so entirely upon the circumstances of each particular case taken in connection with the wording of the will that whenever the right of the party applying is at all questionable, a statement of the case, accompanied by a copy of the will, shall be transmitted to the Probate Officer who will advise thereon.
IX. Application by trust corporation
22. 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.
23. With every such 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.
X. Limited administration
24. 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.
XI. Administration under the Succession Act, 1965
26. 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.
XII. Grant to an attorney
27. 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.
XIII. Grant to a guardian
29. 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 an 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.
XIV. Administrator’s oath
30. (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
31. Administration bonds shall be attested by the Probate Officer or Assistant Probate Officer or 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 or District Registry, shall be attested by the same person who administers the oath to such administrator unless the court or the Probate Officer or District Registrar shall otherwise order.
33. The sureties to administration bonds shall justify in the gross amount at which the estate of the deceased is sworn unless the court or the Probate Officer or District Registrar shall otherwise order.
34. 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 the 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.
XVI. Issue of grant
37. Notices of application for grants of probate or administration with will annexed transmitted by a District Registrar to the Probate Officer shall contain in addition to the particulars specified in the Succession Act, 1965, section 36, an extract of the words of the will by which the applicant has been appointed executor, or the words (if any) upon which he founds his claim to such administration, and shall show the day upon which the application is made.
38. Notice of application shall set forth the names and interests of all persons who, according to the practice of the court, would have a prior right to the applicant, and shall show how such prior right is cleared off. In case the persons, or any of them, shall have renounced, the date of such renunciation shall be stated. If the applicant claims as the representative of another person, the date and particulars of the grant to him in the estate of such other person shall be stated.
40. The draft oath to lead to grants of special or limited probate, or of administration intestate or with will annexed, shall be transmitted by the District Registrar to the Probate Officer to be settled; and no special or limited grant shall issue until the draft oath to lead to the same has been settled by the Probate Officer.
41. A District Registrar 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.
42. Every will or copy of a will exhibited in the 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.
43. 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.
XVIII. Revocation and alteration of grant
45. No grant of probate or letters of administration shall be altered by a District Registrar, without an order of the Probate Officer having been previously obtained. In case the name of the testator or intestate or the date of death requires alteration, notice of an application to amend shall be given, and the alteration ordered shall not be made by a District Registrar until the usual certificate on such notice has been received from the Probate Officer.
46. Order 40, Part I, shall apply to affidavits filed or used in District Registries.
47. 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.
48. 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 the appropriate District Registry.
50. 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.
51. Any person who shall knowingly lodge, or cause to be lodged, in a District Registry, 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.
52. A District Registrar shall, immediately upon a caveat being lodged, send a copy thereof to the Probate Officer, and also to the Registrar of any other district in which it is alleged the deceased resided at the time of his death, or in which he is known to have a fixed place of abode at the time of his death, and shall state the day on which the same was lodged.
55. After a caveat has been lodged, a District Registrar shall not proceed with the grant of probate or administration to which it relates until it has expired or been subducted, or until he has received notice from the Probate Office that the caveat has been warned and no appearance entered or that the contentious proceedings consequent on the caveat have terminated.
XXI. Citations and subpoenas
XXII. Blind and illiterate testator
58. A District Registrar shall not allow probate of the will or administration of 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. Where such information is not forthcoming, the District Registrar shall communicate with the Probate Officer.
XXIII. Alteration in grant
59. Whenever any alteration is made in a grant, or a renunciation is filed, notice of such alteration or renunciation shall without delay be forwarded by the District Registrar to the Probate Officer, but no fee shall be payable in respect of any such notice.
XXIV. List of grants
60. The lists of grants of probate and administration required to be furnished by a District Registrar under the Succession Act, 1965, section 36, shall contain the name of the District Registry in which such grant was made and the first name and surname of each testator and intestate.
61. Every such list of grants forwarded by a District Registrar shall be accompanied by a copy of the record of each grant mentioned in it. The record, besides stating the necessary particulars of the grant to which it refers, shall contain the place and date of death of the testator or intestate, the names and description of each executor or administrator, the date of each grant and the sum under which the value of the estate is sworn.
62. Within four days from the end of each month each District Registrar shall forward to the Probate Office a return arranged alphabetically of all grants of probate or letters of administration passed at his District Registry during the preceding month.
XXV. Notice to Attorney General
63. 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.
XXVI. Transmission of papers
64. 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.
65. 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.
XXVII. Copies of wills
66. 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 District Registrar shall direct.
67. Copies of wills and other testamentary documents will not be collated with the originals unless specifically required. Every copy required to be certified shall be certified under the hand of the District Registrar.
XXVIII. Production of documents
69. (1) If a will or other document filed in a District Registry 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) Where 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 District Registrar be sent by registered post to the appropriate County Registrar.
XXX. Personal application for grant
75. 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.
77. The papers necessary to lead to the grant shall be prepared and sworn in the District Registry. An applicant may bring such papers, or any of them, filled up, and if correct they may be received and if already sworn shall be resworn. Any papers once received in a District Registry shall not be given out unless under special circumstances by permission of the Probate Officer.
81. Legal advice shall not be given to applicants, either with respect to the property to be included in the schedule, or upon any other matter connected with the application, and a District Registrar shall only be held responsible for embodying in a proper form the instructions given to him, but he shall, as far as practicable, assist applicants by giving them information and directions as to the course which they must pursue.
82. A receipt or acknowledgement of each application shall be handed to the applicant, and the production of such receipt shall be required of the person who intends to obtain the grant when completed.
85. 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 1, shall, where applicable, be used. In the case of the estates of persons dying before the 1st January, 1967, the forms heretofore in use in connection with such estates shall be used.