1

Karl Dowling TEP Barrister-at-Law

_____________________________________________

1 Arran Square

Arran Quay

Dublin 7

DX: 818059 Dublin

Tel: 087 2365910

Fax: (01) 6865515

E-mail: karldowling@lawlibrary.ie

Avoiding the Pitfalls of Probate Practice

1. Wills - the Importance of Making Comprehensive Contemporaneous Notes

2. Cost Implications for the Misuse of Caveats

3. What to do when a Will is Lost - New Procedure

4. Section 117 Litigation Update - What is now defined as the ‘first’ Grant of

Representation - Seminal New Case - In the Matter of the Estate of F.

Deceased (High Court, Laffoy J., 23rd

August 2013)

5. The Assisted Decision Making (Capacity) Bill 2013 – Altering Wills and

Implications for Solicitors

6. Common Reasons for the Rejection of Applications by the Probate Office –

New €40 Query/Resubmission Fee

____________________________________________

Member of the Society of Trust and Estate Practitioners

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PART 1

WILLS – THE IMPORTANCE OF MAKING

COMPREHENSIVE CONTEMPORANEOUS NOTES

The importance of making comprehensive contemporaneous notes when taking instructions

from a client in respect of a Will cannot be over-emphasised.

Actions involving (i) the construction of wills; (ii) claims brought against the estate for

monies due; (iii) the capacity of the testator; or (iv) section 117 of the Succession Act 1965,

are all too commonplace.

The common denominator in all of these actions is the significance of making comprehensive

contemporaneous notes when taking instructions from a testator. Furthermore, you must

spend ample time with the client when taking such instructions and discuss in detail all

relevant issues, even those issues not contemplated by the client, and if necessary follow up

inquiries regarding some of the instructions.

The absence of contemporaneous notes between a solicitor and client makes an assessment of

a client’s capacity difficult. In Moyles v Mahon1 the court stated that “it is certainly

desirable to have an attendance but it is not a mandatory requirement. If one of these

solicitors had died, there may be grave difficulties in certain circumstances without a

contemporaneous note.”

By now Practitioners will be well aware of “the Golden Rule” referred to by Ms Justice

Laffoy in Scally v Rhatigan2 which involved a challenge to the Last Will and Testament of

Brian Rhatigan deceased on the basis of a lack of testamentary capacity.

‘The Golden Rule’, which was first referred to in Kenward v Adams3 and subsequently in Re

Key4 where Briggs J described the rule as follows:-

“the substance of ‘The Golden Rule’ is that when a Solicitor is instructed to prepare

a Will for an aged Testator, or for one who has been seriously ill, he should arrange

for a Medical Practitioner first to satisfy himself as to the capacity and understanding

of the Testator and to make a contemporaneous record of his examination and

findings.”

If that Rule is to be regarded as ‘the Golden Rule’ in relation to capacity then of equal, if not

greater, importance is ‘the Golden Rule’ in relation to making a Will in general. When a

Solicitor is instructed to prepare a Will for a Testator, he or she must make comprehensive

1 High Court, Smyth J., 6th October 2000.

2 (2010) IEHC 475.

3 (1975) CLY 359.

4 (2010) 1 WLR 2020.

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contemporaneous notes of the instructions given, advise the client about whether or not it is

legally possible to give effect to the instructions and record in writing the advices given in

respect of the instructions received.

In my opinion, in every case, you must discuss issues with the client which he or she may not

have contemplated; such as any potential claims against the Estate for monies due and owing

for works done and/or services rendered or whether or not a marriage to a particular person is

contemplated. The necessity to review Wills every two years or following a change in either

financial or personal circumstances at any stage, is most important.

This may seem like a statement of the obvious, however, it is not uncommon for attendance

notes to contain little or no information; or in some cases for there to be no attendance notes

at all.

A Solicitor should consider and record, inter alia, the following:-

a) The name and address of the client.

b) Does the firm hold an existing Will? Alternatively is there a previous Will being held

by a different firm, and, if so, obtain a copy of it and ask why the provisions of the

earlier Will are being changed, particularly if there is a radical change in the

provisions of the new Will and record the reasons in writing.

c) Who are the proposed Executors?

d) Is there a need for Trustees?

e) What are the Deceased’s assets and where are they situated or maintained; and what

are the Testator’s debts?

f) Medical history and past/present marital status of the client. Is there a separation

agreement or a divorce in place, if so, get a copy of same.

g) Is marriage contemplated?

h) Does your client have a spouse (civil partner) and/or children? Is the spouse (civil

partner) and/or children being included as beneficiaries and if not, why not?

i) Does the Testator need to be advised on any issue regarding inheritance tax?

j) Who does the Testator intend to benefit and why?

k) Has the Testator property abroad? If affirmative, have they made a Will in the foreign

jurisdiction and if so, get a copy of same and ensure that the Will made in Ireland and

the Will made abroad do not revoke one or other.

l) Is your client’s spouse (civil partner) or children suffering from any mental or

physical disabilities?

m) With an elderly or infirm Testator, the solicitor should make an assessment of the

person’s testamentary capacity, record same and set out the basis upon which they

formed the belief that the client had testamentary capacity but at the same time

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arranging (prior to execution) to have the client assessed by their General Practitioner

or Consultant as detailed in Scally v Rhatigan.

n) If the client is a homeowner or the owner of farmlands, have a discussion about

whether or not any relatives, friends or neighbours assist them in any way such as

carrying out works or providing services to the home or land and if so, confirm

whether or not they are being remunerated in respect of same. Also, confirm whether

or not any representations or promises were made by the client to those individuals

that they would be remunerated for their services upon the death of the client, or

alternatively, confirm whether or not any agreement or representations were made

pursuant to which the person providing the assistance was promised an interest in the

home or the lands.

o) If the Testator is introduced to the firm by a potential beneficiary or a relation of a

potential beneficiary under the Will then an assessment ought to be made about

whether or not the Testator is acting freely and voluntarily. Again the solicitor’s views

in this regard ought to be recorded.

p) Try to keep the Will as simple as possible.

q) Advise about Section 117 proceedings and the legal right share of the surviving

spouse under Section 111 and Section 115 and the right of the surviving spouse to

appropriate the dwelling house and contents under Section 56 and consideration of the

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

r) Advise about the potential claims against the Estate for monies allegedly due and

owing for works done and/or services rendered and/or goods supplied by a relative,

friend or neighbour and/or advice about claims against the Estate by friends, relatives

or neighbours alleging that the client represented and/or entered into agreement

pursuant to which the client promised them an interest in land and/or the family home

arising out of works done or services rendered.

s) Record whether or not the Will was read over to the Testator by the solicitor or by the

Testator himself or herself. Furthermore, record whether or not they expressed

satisfaction and approval of same.

t) Make enquiries about joint property, when the property was put into joint names and

the purpose of putting the property into joint names, the relationship between the

client and the joint property holder.

u) If the Testator is unable to sign his or her name due to illiteracy or a physical

disability then this ought to be recorded also.

v) Record that Section 78 of the Succession Act 1965 in respect of due execution had

been complied with.

w) Where the client intends to make charitable legacies ensure that the charity had been

property described in the Will. If necessary contact the Commissioner for Charitable

Donations and/or the Intended Charity for the confirmation of their address.

x) Ensure the Will clearly identifies the beneficiaries. Again while this may seem like a

statement of the obvious it is not uncommon for Wills to incorrectly refer to the

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relationship between the client and the beneficiary. Also ensure to avoid ambiguous

words such as “the family”.

The aforesaid does not intend to be an exhaustive list.

The matters which ought to be considered when taking instructions are referred to simply to

draw your attention to the fact that a Will may not be as simple as first appears.

The Law Society has published a Practice Direction entitled Law Society Drafting Wills for

the Elderly Client—Guidelines for Solicitors, February 9, 2009, which, inter alia, provides a

touchstone for the making of attendance notes and which states:

“Following the taking of instructions and on the completion of the consultation with the

elderly client, a solicitor should immediately draft the attendance. This document may

be invaluable at a later stage as evidence of the instructions given that gave rise to the

drafting of the will and in establishing that the will of the testator was made in the

absence of undue influence. A solicitor should also record in the attendance the

assessment of the testator’s mental state, particularly so where there may be a doubt

about capacity to make the will. The attendance should record details of examinations

and findings, with clear and comprehensive notes of what steps were taken to establish

capacity, and, where relevant, to explore any changes or alterations from earlier wills.”

In the event of any, inter alia, construction suit by or against the Estate or indeed in relation

to a Section 117 claim or a challenge to testamentary capacity, the more details that are

recorded in the instruction sheet the greater the chance of successfully defending any such

claim.

This is particularly so in respect of any potential claim again the Estate for monies due and

owing for works done and/or services rendered and/or goods supplied and/or for specific

performance of a testamentary contract pursuant to which it is alleged that the Deceased

promised and/or represented to the claimant that he or she would be the owner of certain

lands or properties on the death of the Deceased where one of the parties to the alleged

agreement are deceased.

Comprehensive attendance notes go a long way towards defeating a claim or warding off a

claim by a potential claimant where one of the parties to the alleged contract, namely the

Deceased, is now dead. The attendance notes will not fall foul of hearsay rule but could

potentially be the difference between successfully defending a claim or not.

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PART 2

COST IMPLICATIONS FOR THE MISUSE OF CAVEATS

Practitioners may lodge caveats on behalf of clients for a variety of reasons and in some cases

caveats are lodged in the absence of grounds. A caveat has been known to be deployed

tactically to give the caveator an opportunity to make enquiries. However, the appropriate

basis for the lodgment of a caveat is only in circumstances where a caveator intends to

maintain a challenge to the validity of a will.

As you are aware, a caveat is an entry made in the books of the Probate Office or District

Registry, which has the purpose of preventing the issuing of a grant of probate or letters of

administration without notice being given to the person who lodged the caveat. Therefore, no

grant can issue until the caveat has been removed or after the expiry of six months after its

lodgment, provided that it is not renewed. The caveat must contain the following:

• the date of lodgment;

• the name and address of the caveator; and

• the name and address of the person or solicitor who lodged it.

The response to a caveat is called a “warning”, which must be filed in the Probate Office or

District Registry and contain the following:

• the name and address of the person on who’s behalf it has been issued;

• a statement as to whether the person who issued it claims under the will;

• the date of the will; and

• the registered place of business of the solicitor who lodged the warning or the name

and address of the person who lodged it.

In terms of time periods, the warning must be served within 14 days of its issue, on either the

caveator’s solicitors, or if it was personally lodged, on the caveator. After the service of the

warning, the caveator must then enter an appearance in the Probate Office or District Registry

within 14 days of service. Where no appearance is entered to the warning, the Probate Office

or District Registry can remove the caveat once an affidavit of service of the warning,

together with a certificate of non-appearance, is lodged.

If an appearance is entered on behalf of the caveator, an application may be made to court to

have the caveat removed if any of the following can be demonstrated:

• that the caveator has no interest in the estate of the deceased either under the will or

on intestacy;

• that the caveat has been entered in order to obstruct an order made by the court from

being carried into effect; or

• that the caveat has been entered merely for the purpose of delaying the issue of the

grant.

Where there is a doubt as to the locus standi of a caveator or there exists a doubt as to the

grounds upon which the caveat is lodged, or for other sufficient reason, an application may be

brought to set the caveat aside.

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It is important to note that before bringing an application before the court seeking to have to

the caveat set aside, the caveator should be requested to remove the caveat or set out the basis

in writing for having filed same.

Proofs

An application to set aside a caveat must be by way of motion on notice to the caveator and

grounded upon affidavit that fully expounds the particulars relied upon to have the caveat set

aside. Proofs will largely depend upon the facts of the matter but it can be said that cogent

evidence will be required.

Costs

Where a caveator has his or her caveat set aside by the court, depending on the basis for the

decision, the court may condemn the caveator in costs, as to require an estate to bear the costs

of setting aside an inappropriate caveat may be harsh in the circumstance that exist. This

outcome might increase in likelihood where the caveator has tactically deployed a caveat for

reasons other than maintaining a challenge to the validity of a will. The Probate Judge is very

clear in his rulings on improperly lodged caveats and will make costs orders against the

caveator in such cases.

The prospective caveator should therefore proceed with all due caution and forethought prior

to lodging a caveat and practitioners should be conscious of costs implications for groundless

caveats.

Section 117 Proceedings

As you are aware, there is a six-month limitation period in which to issue proceedings

pursuant to section 117, and which only begins to run from the date of the extraction of a

grant of probate or a grant of administration with the will annexed.

Whilst proceedings can be issued prior to a Grant of Probate being issued from the Probate

Office, nevertheless, proceedings cannot be determined in the absence of that Grant.

It is important to note that, strictly speaking, the lodging of a caveat in section 117

proceedings is incorrect, as it prevents the Grant of Probate from issuing, which is required

for such proceedings to be heard.

When practitioners receive last minute instructions from a potential section 117 applicant, it

is commonplace to lodge a caveat in order to create some “breathing space” to consider

matters more fully.

If you find yourself in this position, your client is at risk of having to pay the estate’s costs in

any application to remove your caveat, provided of course that you refuse to do so. If a caveat

has been lodged in the deceased’s estate, whilst instructions are being taken regarding a

section 117 action, it may be prudent to write to the estate’s solicitor agreeing to remove the

caveat before the Grant of Probate issues and asking to be notified when it in fact issues.

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PART 3

WHAT TO DO WHEN A WILL IS LOST – NEW PROCEDURE

You will note that I am referring to the loss of a Will, which was last in the possession of a

solicitor. Entirely different considerations are necessary when it is known that the deceased

has made a Will, was in their possession, and it cannot be located after death. In such an

instance, it is presumed that the deceased destroyed the Will with the intention of revoking it.

Where the original of a will is lost (by a solicitor) and not forthcoming but, there exists a

copy, an application may be made to the Probate Officer, Ms. Annette O’Connell. If the

matter raises no issues of concern the Order to admit the will to proof in terms of copy is

made in the Office.

This is a new procedure, as previously an application seeking to prove a Will in terms of a

copy was made in the High Court Non Contentious Probate List.

Saying that, having spoken to Mr. Justice O’Neill, it has been confirmed that the Probate

Officer may refuse to admit the copy Will to proof if complex circumstances are present.

Ordinarily, Counsel prepares all the necessary proofs and the application is made by way of

Motion, grounded upon Affidavit. I will set out the necessary proofs and there is no reason

why you should not draft the proofs yourself, especially if the cost of the application is

coming out of your own coffers.

There are a number of proofs required to be met in order for an applicant to have a prospect

of successfully obtaining an order admitting a will to proof in terms of a copy:

1. There is evidence forthcoming to confirm that the Last Will and Testament of the

Deceased was executed in accordance with the provisions of the Succession Act 1965

The persons who witnessed the Will should swear an Affidavit of Attesting Witness,

confirming that the Will was executed in accordance with the provisions of the

Succession Act 1965. If possible, the witness should also confirm whether or not the Will

was read over to the Deceased, prior to execution and whether they expressed satisfaction

with same, or in the alternative, that the Will was read over by themselves prior to

execution and expressed satisfaction with same.

If the primary evidence is unavailable there should be secondary evidence by someone

who recognises the signature(s) of the attesting witnesses and the testator as the names of

the persons set out on the face of the copy will.

2. That there is evidence that the signature which appears at the foot or end of the

Photostat Copy Will is in fact the signature of the Testatrix

A relative or close friend of the deceased should confirm that the signature is in fact that

of the deceased.

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3. There is evidence forthcoming to confirm who caused the Photostat Copy Will to be

made and that to all intents and purposes the Photostat copy is a true and accurate

copy of the Original Will

This requires affidavit evidence from the person who prepared the copy, of the manner of

its preparation or alternatively affidavit evidence from someone who was aware of the

contents of the original will and can confirm that it accords in all respects with the copy.

If there is no copy of the will on paper, but it is retained electronically, then someone

would have to give evidence as to the office practice or the means by which the ‘copy’

appeared electronically ,to enable the Court to infer, on the balance of probabilities, that

this is a true copy of the original lost will.

4. That all the individuals entitled to share in the administration intestate of the Deceased

are either on notice of the application or alternatively consenting

In any application to have a Photostat Copy Will admitted to proof, it is necessary to

either put on notice all of the persons entitled to share in the administration intestate of

the estate of the Deceased or alternatively to have Consents signed by them having had

the benefit of independent legal and financial advice.

5. Gross and net value of the estate

A copy of the Inland Revenue Affidavit should be exhibited to the Grounding Affidavit.

6. Advertisement regarding Lost Will must be placed in the Law Society Gazette

An advertisement should be placed in the Law Society Gazette. The advertisement should

simply set out the name of the Deceased, late of, date of death and requests that “any

person having knowledge of the whereabouts of any will made by the deceased please

contact” the applicant solicitor.

7. There is evidence forthcoming to confirm the Original Last Will and Testament of the

Deceased was in existence unrevoked at the date of their death

It is important to note that where the last person traced with possession of the Will is in

fact the Deceased; there is a rebuttable presumption in law that the Deceased destroyed

the Will with the intention of revoking it. It is important therefore, to establish whether or

not there is any evidence to suggest that either she did have possession of the Original

Will or alternatively that she never had possession of the Original Will notwithstanding

that the whereabouts of same is not now known.

This is to rebut the presumption of revocation by destruction and necessitates an averment

in an affidavit to the effect that someone saw the will or was aware of its existence after

the Testator’s death or that the original was held in the office of Solicitors who drafted it

but that it now cannot be located by that office.

This is a very important proof, in that, if the Deceased in the person last traced with

possession of the Will and as it cannot be found, there is a presumption that it was

destroyed with the intention of revoking it, unless some family member or some friend

can confirm that she never had possession of it and have they evidence to support that

assertion.

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Costs

The issue of costs is, as always, at the discretion of the court. However, the question of

culpability for the loss of the original is, on occasion, determinative of who bears the costs of

the application. This will in turn depend on the facts of each case at hand. Typically, where

the custodian of the will is a professional offering such a service (i.e. safety deposit facilities

in financial institutions or solicitors charged with its safekeeping) then culpability on their

part in the misplacing of the will may relieve the estate from bearing the costs of the

application.

If it is perceived by the court that the original will has been lost due to an error in a Solicitor’s

office then the court usually considers it unfair that the estate should be ordered to bear the

costs of the application. In those circumstances it is likely that the court will make no order

as to costs. However if the court takes the view that the solicitor was not to blame then it

may exercise its discretion in awarding costs out of the estate.

Where a photostat or other identical copy will is not forthcoming

It is possible to seek an order admitting a will to proof in terms of a reconstructed copy,

where the contents of the will are reconstructed from, inter alia, the attendance notes taken

contemporaneously with the instructions for the will. However, evidence of the most cogent

kind would be required in such circumstances.

Professional implications

Practitioners should be aware that they may owe a duty of care to a legatee under a will to

ensure that the wishes of the testator are not defeated. The expectancy of the legatee may be

defeated in circumstances where the solicitor is culpable in the loss of a will and no copy

exists, or an application to admit a will to proof in terms of a copy is unsuccessful.5

5 See Wall v Hegarty [1980] 1 I.L.R.M. 124.

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PART 4

SECTION 117 LITIGATION UPDATE – WHAT IS NOW

DEFINED AS THE ‘FIRST’ GRANT OF REPRESENTATION –

SEMINAL NEW CASE – IN THE MATTER OF THE ESTATE

OF F. DECEASED (HIGH COURT, LAFFOT J. 23 AUGUST

2013)

Very recently in In the Matter of the Estate of F. Deceased (High Court, 23 August 2013)

Ms. Justice Laffoy, as a preliminary issue, examined whether the Court has jurisdiction to

grant the relief sought by the plaintiff pursuant to section 117 of the Succession Act 1965

"having issued more than six months after the first taking out of representation to the estate

of the Testator which occurred 15th October, 2010 and whether the said grant of

representation was a valid one for the purposes of the running of time".

The Defendant argued that the Plaintiff’s claim was statue-barred, the section 117

proceedings having been issued outside of the six-month time period from the extraction of a

limited grant.

Although section 117 has been in operation for more than forty six years, the preliminary

issue apparently raised a point which has not been previously decided by the High Court.

To refresh your minds, the provision for children is made in section 117(1) provides:

"Where, on application by or on behalf of a child of a testator, the court is of opinion

that the testator has failed in his moral duty to make proper provision for the child in

accordance with his means, whether by his will or otherwise, the court may order that

such provision shall be made for the child out of the estate as the court thinks just."

Before the Court can make a determination under section 117, the Testator's will, that is to

say, his last will and testament, including any codicil or codicils thereto, has to be

identifiable, as has his estate, as defined for the purposes of Part IX. As originally enacted,

sub-section (6) of section 117 provided as follows:

"An order under this section shall not be made except on an application made within

twelve months from the first taking out of representation of the deceased's estate."

Sub-section (6) was amended by s. 46 of the Family Law (Divorce) Act 1996 by the

substitution of "6 months" for "twelve months".

The legal controversy before the court was when did "the first taking out of representation of

the [Testator's] estate" occur: did it occur when the grant of administration ad litem issued on

the 15th October, 2010 pursuant to the order of the Court made on 5th July, 2010 under

section 27(4) of the Act of 1965, as submitted on behalf of the defendants; or did it occur

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when on 28th March, 2011 when the grant of probate issued. The resolution of the

controversy turned on the proper construction of sub-section (6).

Part IV of the Act of 1965 deals with "Grants of Representation", the provision on foot of the

administrator ad litem, section 27(4) provides:

"Where by reason of any special circumstances it appears to the High Court to be

necessary or expedient to do so, the Court may order that administration be granted

to such person as it thinks fit.”

In a report of the Law Reform Commission published in 1989 (LRC 30 - 1989), the following

recommendation was made and which was subsequently submitted to the then Attorney

General in June 1989:

"We recommend that s. 117(6) of the Succession Act be amended so as to give a

discretion to the court to extend the one year time limit within which applications may

be made."

That recommendation was never implemented. Indeed, what happened in 1976, was that

section 117(6) was amended and the time limit was reduced from twelve months to six

months.

The Court was referred to the commentary in Williams, Mortimer and Sunnucks on

Executors, Administrators and Probate (20th Ed.) at paragraph 58 - 13 on those provisions,

where, having outlined the effect of s. 4 and s. 23, the editors state:

"The purpose of this condition is to avoid delay in the administration and distribution

of estates where there might be doubts as to whether an application is likely to be

made. It thus affords simple protection to the principle of the executor's year.”

In this jurisdiction, the "executor's year" is reflected in section 62 of the Act of 1965, which

imposes an obligation on the personal representatives of a deceased person to distribute his

estate as soon after his death as is reasonably practicable, but provides that proceedings

against the personal representatives in respect of their failure to distribute shall not, without

leave of the Court, be brought before the expiration of one year from the date of the death of

the deceased.

It is reasonable to infer that, in this jurisdiction, the primary consideration which informs

legislative policy in relation to the strict unextendable time limit for initiating an application

under section 117 is the avoidance of delay in the administration and distribution of estates.

The decision of Latey J. in Re Johnson (Paul Anthony) (Deceased) [1987] CLY 3882 cited

in Williams et al. was persuasive to the court. In that case, a limited grant had been made in

1983 to the deceased's estate to two solicitors, limited to pursuing negligence claims in

relation to the road accident in which he had died. Probate of the deceased's will was granted

in 1987. The question arose whether time ran under section 4 of the Act of 1975 from the

date of the limited grant or of the full grant of probate. Latey J. held that the limited grant was

not "the first taking out of representation required for time to begin to run under section 4 as

it merely enabled a particular thing to be done in relation to the estate and did not enable the

distribution to take place". The law is summarised in the following passage:

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"The period of six months runs from the date when an effective or valid grant is first

taken out so that if a will is first proved in common and then later in solemn form a

fresh period of six months will not arise and run from the date of the solemn form

grant. On the other hand if a later will is proved and displaces the earlier probate the

period runs from the later (effective) grant."

That lead to the core question on the preliminary issue in relation to the application of section

117(6), namely, what is the meaning of the expression "first taking out of representation of

the deceased's estate" in section 117(6). Does it mean the date when an effective grant was

first taken out, as suggested in Williams, and, if so, can a grant to an administrator ad litem be

regarded as an effective grant?

When one looks at section 117(6) on its own but incorporating the definitions contained in

section 3 of the Act of 1965, "first taking out of representation" reads as follows: first taking

out probate of a will or letters of administration, whether with or without a will annexed, and

whether granted for special or limited purposes. Such a reading would mean that, once a

grant for a limited purpose, time would start to run for the purposes of section 117(6).

However, when one looks at the Act of 1965 as a whole, as one is required to do at common

law, it becomes obvious that the Oireachtas could not have intended that a grant limited for a

purpose, such as a grant of administration ad litem, would start time running against a

prospective applicant under section 117.

Before the Court can determine whether to make an order under sub-section (1) of section

117 –

(a) the terms of the last will, including any codicils, of the Testator must have

been proved either by a grant of probate or a grant of Letters of Administration

with the will annexed, and

(b) the estate of the Testator must be identifiable.

Otherwise, the Court could not form a view as to

(i) what provision had been made by the Testator either by his will or otherwise,

his will meaning his last will validly executed in accordance with law, hence

the necessity for requirement (a), or

(ii) whether the Testator had made proper provision for the child applicant in

accordance with his means, hence the necessity for requirement (b).

The limited grant which issued on 15th October, 2010 did not fulfil either of those

requirements. First, the Testator's will of 4th March, 1996 was not annexed to it and that will

had not been proved in common form as the valid last will of the Testator until the grant of

probate issued on 28th March, 2011. Secondly, the extent of the estate of the Testator was not

established. While, obviously, an Inland Revenue affidavit was filed, it is clear on the face of

the limited grant that the Inland Revenue affidavit, in accordance with normal practice in

such cases, only showed nominal assets.

Further and significantly, under the limited grant of 15th October, 2010, the authority of the

administrator ad litem was limited for the purpose of defending the proceedings which the

creditor bank intended to bring against the estate of Testator. If an application under section

117 was initiated against the administrator ad litem as defendant as representing the estate of

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the Testator, it could not be prosecuted because they had no authority from the Court or

otherwise to defend such an application.

Laffoy J. concluded that:

“when one considers subs. (6) of section 117, in the context of the Act of 1965 as a

whole, the intention of the Oireachtas cannot have been that a grant of administration

ad litem would trigger the commencement of the limitation period provided for in

section 117(6). On the contrary, it must have been the intention of the Oireachtas

that only a grant of probate or a grant of administration with the will annexed

granted on terms such as would enable –

(a) a prospective applicant under section 117 to prosecute his application

against the personal representatives,

(b) the personal representatives to defend, or, if they thought fit,

compromise the application, and

(c) the Court to adjudicate on the application”

After years of uncertainty, the decision of Judge Laffoy is most welcome to practitioners. The

six-month limitation period in which to issue proceedings pursuant to section 117, only

begins to run from the date of the extraction of a grant of probate or a grant of administration

with the will annexed, rather than the date of a limited grant.

15

PART 5

THE ASSISTED DECISION MAKING (CAPACITY) BILL

2013: ALTERING WILLS AND IMPLICATIONS FOR

SOLICITORS

The government has recently published provisions designed to reform the rules relating to

mental capacity. You should be acutely aware of the nature and scope of these proposals as

they provide for substantial change to procedures that have been long embedded in the

psyche of practitioners.

While the Bill proposes fundamental change in relation to, inter alia, Wards of Court and

Enduring Powers of Attorney, the Bill contains a revolutionary proposal that a person who

loses capacity, may subsequently, and during their lifetime, have their last will and testament

altered by the Court in certain circumstances. The practical implications of this section of the

Bill will be considered.

Summary of Provisions

The reform measures contained within the Bill are of an impressive breath and, in particular,

propose to:6

- Replace the Wards of Court system with a legal framework to support people in

exercising their decision-making capacity so that they can better manage their

personal welfare, property and financial affairs.

- Change the existing law on capacity from the current all or nothing status

approach to a functional one, whereby decision-making capacity is assessed on an

issue and time-specific basis.

- Provide a range of supports, on a continuum of intervention levels (for instance,

decision-making assistance, co-decision-making, decision-making representation,

informal support), to support people in maximising their decision-making

capability.

- Provide, in circumstances where it is not possible for a person to exercise their

capacity even with support, that another person can be appointed by the Court to

act as their representative with regard to specified matters.

6 See the Press Release issued on the 17th July 2013 by the Minister for Justice, Equality and Defence, Alan Shatter TD, and

the Minister of State with responsibility for Disability, Older People, Equality & Mental Health, Kathleen Lynch TD,

announcing the publication of the Assisted Decision-Making (Capacity) Bill 2013.

16

- Provide that the Circuit Court will have jurisdiction in this area giving court-

backed protection to the options chosen by people.

- Clarify the law for carers who take on responsibility for persons who need help in

making decisions.

- Establish an Office of Public Guardian within the Courts Service, with

supervisory powers to protect vulnerable persons.

- Subsume into the Bill the provisions in the Powers of Attorney Act 1996 on

enduring powers in order to bring them into line with the general principles and

safeguards in the Bill.

In their joint statement announcing the publication of the Bill, Ministers Shatter and Lynch

indicated that “The Bill will, at Committee Stage, incorporate provisions relating to Advance

Care Directives, which will be provided by the Department of Health.” Such provisions

could substantially enhance the scope of authority bestowed upon attorneys, thereby vastly

improving the utility of the Enduring Power of Attorney procedure.

In addition, the Bill sets out guiding principles as to when interventions may be made

pursuant to the Bill’s provisions.7

Altering an Existing Will in the absence of Testamentary Capacity

The Bill also contains a provision that will attract the attention of probate practitioners, one

which allows the alteration of a testator’s will. Such a concept is new to Irish law and

practitioners should be aware of such a radical change. Section 108 of the Bill provides:8

“(1) Subject to subsection (2), nothing in this Act shall be construed as altering or

amending the law relating to the capacity of a person to make a will.

(2) Where a person who has made a valid will loses testamentary capacity, the High

Court may, acting on its own motion or an application to it by the Public Guardian,

alter the will where it is satisfied that exceptional circumstances have arisen since the

loss of testamentary capacity and the interests of justice so demand, and a will so

altered shall have the same force and effect as if the alteration had been made by that

testator in the manner required by the [Succession] Act of 1965.”

Ensuring not to interfere with the long established rules in relation to testamentary capacity,9

subsection 1 prudently contains an overt statement ring-fencing this provision from existing

law on testamentary capacity. However, subsection 2 provides for a statutory basis upon

which a Court can intervene to alter the terms of a testator’s Will where “exceptional

circumstances have arisen since the loss of testamentary capacity and the interests of justice

so demand”.

As the law stands, a Court’s jurisdiction to interpose its views on the terms of a deceased’s

Will is limited to certain administrative questions, such as the construction of the terms of a

7 See s.8 of the Assisted Decision Making (Capacity) Bill 2013. 8 See also the Explanatory Memorandum to s.108 of the Bill. 9 See s.78 of the Succession Act 1965 and also the case of Banks v Goodfellow [1870] 5 LR QB 549.

17

deceased’s Will where a constructional ambiguity arose, or the making of provision for a

child who is successful in section 117 proceedings.

Though it should be clearly stated that the discretion contained within s.108(2) of the Bill

does not empower the Court or a third party to write a new will for a person incapacitated but

rather bestows upon the Court the power to alter the terms of an existing will if it thinks fit to

do so.

Practical Implications

Under the proposed regime, section 108 potentially allows for the entire redesign of a

testator’s Will during his or her lifetime where that testator has lost testamentary capacity,

albeit only in the environment of exceptional circumstances.

Where such circumstances exist10

and where it appears that the “interests of justice so

demand” an application may be made to the proposed Office of the Public Guardian (or the

Court acting on its own motion).

Additionally, section 108 is unambiguous in bestowing jurisdiction solely upon the High

Court to determine such matters. It remains to be seen as to whether further statutory

guidance will present itself as to the form of such applications or whether such applications

will be listed before the High Court Non Contentious Probate List for hearing.

Such applications were previously considered by the Law Reform Commission.11

The

Commission commenting upon the utility of such a provision stated that “[a]mending an

existing will on behalf of a person who lacks capacity may allow alteration to reflect a

significant change in circumstances.”12

The position of the Law Reform Commission as set out in its 2006 report is essentially the

one reflected in section 8 of the Assisted Decision Making (Capacity) Bill 2013.

The Commission’s report stated a preference for applications to alter existing wills of persons

who have lost capacity as opposed to imbuing the Court or a third party with the power to

make a new “statutory” will on behalf of such a person.

In making its recommendation, the Commission appeared to favour the approach of allowing

for an application to be made to Court to alter the terms of an existing will of a testator who

had lost capacity. The Commission preferred this approach over empowering a third party to

make a new statutory will on behalf of a person who lost capacity as the Commission

harboured fears that “There is a strong possibility that assisting decision-makers may be

inclined to unfairly favour their own interests in making applications under a statutory will

procedure.”

Analysis of the Test

10 Though it remains unclear as to what circumstances would be deemed “exceptional” for the purposes of the section 11 See “Report on Vulnerable Adults and the Law” LRC 83 - 2006 at p. 92 12 Ibid. p.92

18

The Bill’s provisions and the explanatory memorandum accompanying same are silent as to

the criteria upon which such applications are to be determined or the proofs necessary or

what factors should be considered in altering the terms of the will.

It would appear that the section envisages a two stage test with a necessity for both limbs of

the test to be satisfied. A potential application would first, it is submitted, have to show that

“…exceptional circumstances have arisen since the loss of testamentary capacity…” In the

absence of what amounts to such exceptional circumstances, one can only assume that each

application will have to be determined upon its own merits as to whether circumstantial

change that has arisen since loss of testamentary capacity is such as to require the Court’s

intervention.

Circumstances that may change after a person loses testamentary capacity and which could

potentially require the Court’s intervention may be simply imagined; a person’s assets

suffering precipitous loss in value to the extent that specific bequests could not be discharged

as provided for in the will, An attorney acting under an enduring power selling the assets of

the testator which were the subject of specific bequests, the death of a sole or primary

beneficiary named in the will, or a child of the testator suffering a catastrophic injury in the

meantime etc. However, whether such examples are of the requisite exceptional character

will be a question for the Court.

Secondly, it is submitted that, once such circumstances are considered to be of the requisite

exceptional character, success is not assured for the applicant as the Court will have to then

consider the second limb of the test and decide as to whether, notwithstanding the existence

of exceptional circumstances, the “interests of justice so demand” the Court’s intervention.

Clearly, the section envisages a scenario where such exceptional circumstances may exist and

despite same, the Court may still deem that the justice of the case does not warrant its

intervention in the matter.

My view is that considerable and persuasive evidence would be required in relation to

potential applications under section 108 in this jurisdiction. It is also submitted that the High

Court may, given the reverence that attaches to a person’s last Will, be reluctant to utilise the

discretion contained within the proposed section 108 in the absence of compelling and cogent

evidence that the interests of justice demand its intervention. Accordingly, the “bar” to be

cleared in obtaining such relief may be set at an elevated level by the Court. Though, this

remains supposition on the part of the Author.

The Law Reform Commission’s report relied upon academic commentary on applications

under the UK regime as regards what proofs might be necessary and on whom the burden of

proof lays in such circumstances, wherein it stated13

:

“An application needs to show the patient's family and interests, character and

history of generosity, the patient's testamentary history and the relationship to his

proposed beneficiaries, the size of the estate and the likely size of the estate at the

date of death. The application must then apply all these factors to the present

situation and show why the present dispositions under an existing will or intestacy are

inappropriate, and why the patient would wish to change those present dispositions.

The burden of proof is on the applicant to justify the change to the current

dispositions.”14

13 Ibid. p. 94 14 Terrell “Wills for Persons Without Capacity” (2004) 154 (7314) NLJ 968 at 968-969.

19

It remains to be seen as to whether guidance for determining such application will be

included as the Bill makes its way through the Legislature.

Proceeding to Alter the terms of a Will

Establishing the presence of exceptional circumstances that demand the intervention of the

Court and thereby triggering the exercise of the discretion contained within section 108 of the

Bill is only one aspect of an application under this section. Once such circumstances are

evidenced to the satisfaction of the Court and the Court is happy to exercise its discretion, the

question then becomes, how should the Court go about redrafting and altering the terms of

the Will of the person who has lost capacity?

The section itself offers no guidance as to how this might be achieved or what principles

should guide the process of alteration. Similarly it proposes no specific limits on the Court’s

discretion so that it may be inferred that the Court has the discretion to fundamentally alter

the entirety of the terms of the will if it saw fit to do so.

A question that might arise regarding the means by which the Court might alter the will

would be whether the Court has the jurisdiction or the inclination to create a discretionary

trust as part of the will. Such a measure may be necessary in the example cited above of a

child who suffered a catastrophic injury requiring advanced care for the rest of his or her

life.15

Such matters will require the determination of the Court in due course and guidance in

relation thereto may yet be provided by way of future regulation or expansion of the existing

test of s.108 when enacted. However in the absence of same, inspiration may be found

abroad.

The Law Reform Commission’s report16

paid particular attention to the regime prevailing in

the United Kingdom, which allows for (with the Court’s approval) the making of a will on

behalf of a person who is incapable of making a will by reason of mental disorder.17

The

report also considered jurisprudence from the United Kingdom that may be of analogous

assistance to practitioners if, and when, s.108 applications are available in this jurisdiction.18

The Commission, in highlighting the difficulties inherent in such applications, referred to the

comments of Ferris J. in Re R19

:

“The court needs to have a fair degree of assurance that what it proposes to do does

indeed represent the wishes of the patient and that it is what she would decide for

herself if she were temporarily to recover her capacity and to receive proper advice

as to her position.”

Such a comment that the Court needs a “fair degree of assurance” in these matters would

indicate that the standard of proof in section 108 applications may indeed be of an elevated

nature.

15 It is submitted that there is a precedent for the creation of such discretionary trusts in an analogous statutory framework

under s.117 of the Succession Act 1965 where the Court has previously saw fit to make provision out of a deceased’s estate

by way of discretionary trust. 16 LRC 83 – 2006 at p. 92 and thereafter. 17 This power is pursuant to section 96(e) of the Mental Health Act 1983 and section 18(1)(i) and Schedule 2 of the English

Mental Capacity Act 2005 (which is understood to have been commenced on the 1st October 2007). 18 It should be noted that this jurisprudence relates to applications in the UK where a third party is seeking to make a new

will on behalf of a person who has lost capacity. However, it is submitted that such guidance would be of assistance by way

of analogy to the proposed applications to alter a will under s.108 of the Assisted Decision Making (Capacity) Bill 2013. 19 English Chancery Division 11 December 1998.

20

The Commission’s report also referred to principles that (it is submitted) may be of analogous

assistance in this jurisdiction. The report, referring to the judgment of Megarry VC in Re

D(J)20

stated:

“The court will proceed on the basis of a notional assumption that the patient is

having a brief lucid interval at the time the will is made;

· During that brief lucid interval the patient is treated as having a full knowledge of

the past, and a full realisation that as soon as the will is executed he or she will

relapse into the pre-existing mental state;

· The court must consider the actual patient’s likely wishes not those of a hypothetical

person in that situation. This includes taking account of idiosyncratic views and

strong likes and dislikes of other persons and causes. In doing so the court must take

the patient as he or she was before losing testamentary capacity, with some allowance

made for the passage of time since the loss of capacity;

· The patient is to be envisaged as being advised by competent solicitors;

· The approach to be taken is not one of balance sheet or profit and loss account in

relation to moral indebtedness.”

If and when the published Bill is enacted and assuming the enactment of section 108 in the

terms set out in the Bill, practitioners, in the absence of further guidance, will require judicial

comment in order to properly ascertain the nature of the above test. The guidance offered

above is merely for discursive purposes at this point in time.

Conclusion

The legislative landscape encompassing all matters relating to capacity is set to shift

substantially on the enactment of the Assisted Decision Making (Capacity) Bill 2013.

The application to alter the terms of a will as provided for in section108 of the Bill remains a

legislative proposal only and is in no way operative as of the time of writing. However, the

Bill is the product of a considerable amount of consultation and research over many years and

it is foreseeable that s.108 of the Bill will in due course be transposed into law and

commenced in this jurisdiction. Practitioners should be acutely aware of, and stand ready to

meet, the challenges and opportunities that will, in all probability, soon be apparent.

Expanding longevity in elderly persons overlaid with an increasing incidence of dementia and

other testamentary incapacitating conditions would seem to suggest that this provision of the

Bill, if and when enacted, could be frequently called upon by practitioners in the future.

Practitioners may well be advised to start preparing to take steps to identify and liaise with

clients for whom they have drafted wills and who may be anticipating, or already have

suffered, testamentary incapacitation. Should the terms of section 108 be subsequently

enacted, practitioners will have to make amendments to the fashion in which they manage

their wills files and communicate with clients. No doubt the Law Society of Ireland will issue

20 [1982] 2 All ER 37. This case considered the case of a woman who had lost capacity through the onset of senility.

21

guidance in due course as and when it becomes necessary and practitioners should be keenly

observant for change in this area.

22

PART 6

COMMON MISTAKES FOR THE REJECTION OF

APPLICATIONS IN THE PROBATE OFFICE – NEW €40

QUERY/RESUBMISSION FEE

With effect from the 10th July, 2013, SI 239 of 2013 Supreme Court and High Court (Fees)

Order 2013 will introduce a charge of €40 payable every time an application for a grant of

representation is re-submitted to the Probate Office or the District Probate Registry.

It is not clear whether this charge will apply where documents are rejected on or after 10th

July or whether the charge will also apply where documents were rejected prior to this date

and re-submitted after this date.

Practitioners who avoidably cause an application to be rejected, cannot, I would suggest,

either recover the €40 charge from the estate or bill for the time spent dealing with the

rejected application. Therefore, the importance of submitting an application, free from

mistakes, is abundantly clear.

Set out below are the most common reasons why applications are rejected by the Probate

Office:

No

Reason for

rejection

Tips on how to avoid this

1

No title (or title

not properly

indicated in the

oath).

1. Ensure the applicant is the correct person to apply for the grant

before submitting your application.

2. Ensure the applicant’s title is fully and clearly set out in the oath.

3. Foreign domicile cases—ensure you read the information note.

4. Useful resources:

(a) Probate Practice in a Nutshell (by Eamonn G. Mongey

(Dublin: Self Published))—this book contains excellent

specimen titles (p.94 supra, 2nd edn). The wording of the

clearing off clause in your oath should follow the

wording/format of the specimen titles set out by Mongey.

(b) Order 79 r.5(1)—sets out order of priority for intestacy

cases (where date of death is on or after January 1, 1967)

(c) Order 79 r.5(6)—sets out order of priority for will annexed

cases (where date of death in on or after January 1, 1967)

(d) Succession Act 1965

(e) Order 79 in general.

23

No

Reason for

rejection

Tips on how to avoid this

2

Affidavit of

attesting witness

(AAW)

required.

1. Read the information note on affidavits of attesting witnesses in

advance of submitting your application. This outlines the main

circumstances when an AAW is required.

2. Review the will thoroughly to ascertain if there may be any

reason why an AAW would be required.

3

Oath: value of

estate in oath is

incorrect.

1. The figure in the oath should be the gross estate.

2. Where the executor is not the applicant, the estate in the oath

should be split between real and personal estate. (Note: leasehold

property = personal estate.)

3. Where the executor is not the applicant, the value of the estate in

the oath should incorporate current market value of immoveable

estate.

4. Where the executor is the applicant, ensure the gross estate

figure in the Inland Revenue Affidavit matches the gross estate

in the oath.

5. In de bonis non cases, the current value of the immovable

unadministered assets should be indicated in the oath (and

revenue affidavit).

4

Revenue

affidavit:

incorrect

revenue affidavit

sworn.

1. Ensure you are familiar with the various revenue affidavits and

the correct procedures. Check the Revenue Affidavit Guide

(CA25).

2. For deaths on or after December 5, 2001 (first grants), use Form

CA24. There is a computer-fillable version available on

www.revenue.ie. For this category of case, lodge the sworn

revenue affidavit (x2) with your probate application in the

Probate Office.

3. For deaths prior to December 5, 2001 (first grants), check out

www.revenue.ie to ascertain the correct form. In these cases, the

revenue affidavit, once sworn, must be lodged with Revenue in

the first instance. On obtaining the revenue certificate for the

High Court, you can then lodge your probate application with

the Probate Office. If you are in doubt about which form to use,

contact Revenue.

4. For de bonis non applications where the date of death is on or

after December 5, 2001, use form A3C. There is a computer

fillable version available on www.revenue.ie.

5. For de bonis non applications where the date of death is before

December 5, 2001, check out www.revenue.ie for the correct

form. If you are in doubt about which form to use, contact

Revenue.

5

Revenue

affidavit is

incomplete/incor

rectly

completed.

1. Ensure you are familiar with the Inland Revenue Affidavit

Guide—CA25.

2. Ensure you fully complete all sections of the revenue affidavit.

3. Note the following items in particular:

(a) CA24, Pt 8: double alpha PPS numbers are not acceptable

for beneficiaries.

24

No

Reason for

rejection

Tips on how to avoid this

(b) CA24, Pt 8: you must answer the question in relation to

aggregable benefits for each threshold for each beneficiary

listed

(c) CA24, Pt 6: if property is indicated to pass by will or

intestacy here, it should be included in Pt 4 (as in it should

form part of the estate).

(d) Ensure both CA24s are sworn before a

solicitor/commissioner for oaths and that the jurats are

properly completed.

6

Lodge Affidavit

of Testamentary

Capacity (ATC).

1. Review the case to ascertain if any of the indicators below arise:

(a) The death certificate of testator indicates any one of the

following: Alzheimer’s, dementia, cognitive impairment.

(Note that if death certificate states “Alzheimer’s 2 years”

and the will was made 5 years before death, an ATC may

not be required).

(b) Testator died in a psychiatric institution.

(c) Testator died a ward of court.

As a general principle, where such indicators are present, an

affidavit of testamentary capacity may be required by the

Probate Office.

2. Read the information note on testamentary capacity.

3. Ensure the ATC is sworn by the appropriate person as in the

doctor attending the testator at the time of the execution of the

will.

If that is not available, an ATC may be accepted from the

solicitor who drew up the will (it should include an explanation

as to why medical evidence is not forthcoming).

(See Mongey, Probate Practice in a Nutshell (Dublin: Self

Published))—Forms 23 and 24 for precedents.)

7

Lodge Affidavit

Of Plight And

Condition

(APC).

Review the will before submitting to the Probate Office to ascertain

if there are any pin-holes, clip marks, etc. and obtain an APC in

advance of applying for the grant.

8

Will

(codicil(s))—

original not

lodged or

insufficient

number of

copies lodged.

1. Ensure you lodge the original will.

2. Ensure you lodge three A4-sized copies of the will/codicil(s)—

one copy should be certified.

25

No

Reason for

rejection

Tips on how to avoid this

9

Exhibits to oath:

not marked by

the

commissioner

and applicant.

Review all exhibits to the oath and ensure they are marked by the

applicant and commissioner (as in original will, sealed and certified

copy grant, renunciation, power of attorney, original disclaimer and

so on).

10

Lodge current

valuation.

If the applicant is not the executor and there is immoveable property,

a current valuation is required for all property. If the property is one

acre or more or is of a commercial nature, the valuation must be by

way of affidavit.

11

Death

certificate—not

lodged.

Ensure you lodge a death certificate with all applications (a

coroner’s interim certificate will suffice where a death certificate is

not yet available). Where neither is available consult the Probate

Officer.

12

Lodge

Charitable

Bequest (CB)

form.

Review the will to ascertain if there are any charitable bequests. If

so, complete Form PAS3 and lodge with application.

13

Name and/or

address of

deceased or

applicant differ

as between will

and oath.

Ensure various names and former addresses in will are covered in

the oath.

14

Lodge

original/copy

oath.

Ensure you lodge an original oath and one copy with your

application.

15

Oath: date of

death does not

match death

certificate.

Review all papers before submitting to confirm date of death is

consistent throughout.

16

Oath: jurat is

incomplete.

Review jurat before submitting (note S.I. No. 95 of 2009).

17

Oath: no filing

clause.

Ensure you complete filing clause on oath (as in name and address

of lodging solicitors).

26

No

Reason for

rejection

Tips on how to avoid this

18

Bond not lodged

or incorrect

bond lodged.

Where the executor is not the applicant, ensure you lodge a bond.

Ensure you lodge the correct bond (the most common one is for

deaths on or after January 1, 1967. For deaths prior to this date,

ensure you use the correct bond). Precedent bonds are available at

court forms.

19

Bond: penal sum

is insufficient.

Ensure the penal sum covers double the gross (real and personal)

assets figure in the oath (incorporating current market value).

20

Bond: different

commissioner

on oath and

bond.

Ensure the same commissioner’s signature appears on the oath and

bond (Ord.79 r.29 of the RSC).

Acknowledgment

Copyright in all forms and materials produced by the Courts Service remain the property of the Courts

Service wherever such publications are reproduced herein under the terms of Re-use of Public Sector

Information Regulations 2005 (S.I. No 279 of 2005). For all information, the practitioner should refer to

www.courts.ie for the most up-to-date information.

27

CHECKLISTS

(i) Grant of Probate

(ii) Grant of Administration with Will Annexed

(iii) Grant of Letters of Administration Intestate

* Extract from the Irish Probate Practitioners’ Handbook, Dowling & Grimes, 2013,

Thomson Round Hall. All rights reserved. © Dowling & Grimes

If you would like to receive the full extract dealing with the necessary proofs for extracting

each of the above grants, please email me at karldowling@lawlibrary.ie and I will send you a

pdf document.

28

Grant of Probate Checklist

√ (Tick)

o Original Will and Codicil (if applicable) and Engrossment

o Death Certificate

o Oath of Executor (and copy)

o Renunciation of Executor (if applicable)

o Inland Revenue Affidavit

o Schedule of Lands

o Affidavit of Attesting Witness (if required)

o Affidavit of Plight and Condition

o Affidavit of Testamentary Capacity (if required)

o Charitable Bequest Form (if required)

Grant of Administration with Will Annexed Checklist

√ (Tick)

o Original Will and Codicil (if applicable) and Engrossment

o Death Certificate

o Oath of Administrator (and copy)

o Renunciation of Executor (if applicable)

o Inland Revenue Affidavit

o Schedule of Lands

o Affidavit of Attesting Witness (if required)

o Affidavit of Plight and Condition

o Affidavit of Testamentary Capacity (if required)

o Charitable Bequest Form (if required)

o Power of Attorney (if applicable)

o Evidence of Current Market Value of Property

o Bond

29

Grant of Administration Intestate Checklist

√ (Tick)

o Death Certificate

o Oath of Administrator (and copy)

o Inland Revenue Affidavit

o Schedule of Lands

o Evidence of Current Market Value

o Bond

o Justification of Surety

DISCLAIMER

This paper is intended to summarise the law and while every care has been taken in the

preparation of this material, no responsibility can be taken by the author for any errors or

omissions and no responsibility can be accepted by the author for any loss occasioned to any

person acting or refraining from acting in reliance on anything contained therein.