Chapter 9: Applying the Court Flashcards
What should an application to the court for a grant of probate include?
- Will (and codicils) plus 2 copies
- Official copy of the death certificate
- Further supporting documents, if required, and
- Payment for probate fees
What should be included in the application to the court for a grant of representation if the original will/codicils have been accidentally destroyed or lost?
Probate may be obtained by a copy of the will or a reconstruction of it if accompanied by an affidavit explaining
What happens if the court grants the grant of representation?
Grant is prepared and sealed by the court.
It is then sent to the ‘extracting solicitor’
What is the ‘extracting solicitor’?
The solicitor who is acting for the PRs
What further evidence might be required by the court before issuing a grant?
- Evidence of due execution of the will
- Affidavit confirming the deceased’s full name and explaining that they signed the will in a shorter name
- Evidence of knowledge and approval of the will’s contents
- Affidavit to confirm whether alterations existed at the date of execution
- Documents referred to in the will
- Affidavit from a witness if there is uncertainty about the date the will was executed, and
- Affidavit of ‘plight and condition’ may be necessary
Why might evidence of due execution of the will be needed by the court?
If the attestation clause is absent or doesn’t cover the particular circumstances.
E.g., a witness via an affidavit of due execution
Why might evidence of knowledge and approval of the will’s contents be needed by the court?
If the attestation clause doesn’t cover this, then an affidavit may be required, normally by an attesting witness (may arise when the testator was blind, illiterate, or frail or when there were suspicious circumstances)
Why might the court need evidence that an alteration existed at the date of execution?
Because unexecuted obliterations, interlineations, or other alterations are presumed to be made after execution of the will and are therefore inadmissible, an affidavit is needed to confirm whether each such alteration existed at the date of execution
Why might an affidavit of ‘plight and condition’ be necessary?
If there was an attempted revocation.
Includes the situation where the presence of pin or staple marks suggests revocation by a later will or codicil.
The affidavit will confirm that the will is in the same plight and condition as when it was found after the testator’s death except for the marks or alterations that can be seen and explained.
What will the court accept in place of affidavits?
Statements of truth
How can a person try and prevent the issue of a grant of representation?
A person can lodge a caveat with HMCTS Probate Service to prevent the issue.
Why might a person lodge a caveat?
The ‘caveator’ might do this if they are a beneficiary and they believe that the executor named int he will lacks mental capacity to act or that the will is invalid.
What is the effect of a caveat being lodged?
They are valid for up to 6 months.
If the matter cannot be resolved, it may end up with a judge determining the issue.
What are the different citations?
- Citation to take probate
- Citation to accept or refuse grant
When may a citation to take probate be used?
When an executor has lost their right to renounce probate by intermeddling in the estate but hasn’t applied for a grant and doesn’t intend to do so.
