Part 68 – Contentious Probate Proceedings

Scope of this Part

68.1

1. This Part applies to probate causes and matters, including applications for the rectification of a will, and the other provisions of these Rules apply to those causes and matters subject to this Part.
2. In this Part –
   • “probate claim” means a claim for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being a claim which is non-contentious or common form probate business; and
   •  “will” includes a codicil.

 How to commence probate proceedings

68.2

1. Probate proceedings must be begun by issuing a fixed date claim form in Form 2.
2. The claim form must state the nature of the interest of the claimant and of the defendant in the estate of the deceased person to which the claim relates.
3. The claimant must file a statement of claim with the claim form.

 Parties to proceedings for revocation of grant

68.3

1. Every person who is entitled or claims to be entitled to administer the estate of a deceased person under or by virtue of an unrevoked grant of probate of the deceased person’s will or letters of administration of the estate must be made a party to any proceedings for revocation of the grant.

Lodgment of grant in proceedings for revocation

68.4

1. If, at the commencement of proceedings for the revocation of a grant of probate of the will or letters of administration of the estate of a deceased person, the probate or letters of administration, as the case may be, have not been lodged in court the –
   1. claimant must lodge the probate or letters of administration at the court within 7 days after the issue of the claim where the proceed­ings are commenced by a person to whom the grant was made; or
   2. applicable defendant must lodge the probate or letters of admini­stration at the court within 14 days after the service of the claim form, if it or them are in the possession or under the control of that defendant.
2. Any person who fails to comply with paragraph (1) may, on the application of any party to the proceedings, be ordered by the court to lodge the probate or letters of administration within a specified time.
3. If an order is made under paragraph (2), a person against whom such an order is made may not take any step in the proceedings without the permission of the court until that person has complied with the order.

Affidavit of testamentary scripts

68.5

1. Unless the court otherwise directs, the claimant and every defendant who has entered an acknowledgment of service in probate proceedings must swear an affidavit –
   1. describing any testamentary script of the deceased person, whose  estate is the subject of the claim, of which he or she has any knowledge or, if such be the case, stating that he or she knows of no such script; and
   2. if the defendant has knowledge of any such script which is not in his or her possession or under his or her control –
      1. giving the name and address of the person in whose posses­sion or under whose control it is; or
   3. that he or she does not know the name or address of that person.
2. 1. Any affidavit required by this rule must be filed; and       (b) any testamentary script referred to therein which is in the possession  or under the control of the deponent; must be lodged at the court –
      1. within 14 days after the filing of an acknowledgment of service by a defendant to the proceedings; or
      2. if no defendant files an acknowledgment of service and the court does not otherwise  direct –before the first hearing.
3. If any testamentary script required by this rule to be lodged or any part thereof is written in pencil, then, unless the court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be lodged and the words which appear in pencil in the original must be underlined in red ink in the copy.
4. Notwithstanding rule 3.14 (2), except with the leave of the court, a party to probate proceedings may not be allowed to inspect an affidavit filed, or any testamentary script lodged, by any other party to the proceedings under this rule, until an affidavit sworn by the first party containing the information referred to in paragraph (1) has been filed.
5. In this rule –
   • “testamentary script” means a will or draft thereof, written instruc­tions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.

Failure to file acknowledgment of service

68.6

1. Part 12 does not apply to probate proceedings.
2. If any of several defendants to probate proceedings fails to file an acknowledgment of service or to file and serve a defence, the claimant may –
   1. after the time for entering an acknowledgment of service or filing a defence has expired; and
   2. upon filing an affidavit proving due service of the claim form and statement of claim on that defendant; proceed with the claim as if that defendant had entered an acknow­ledgment of service.
3. If the defendant, or all the defendants, to probate proceedings, fails or fail to file an acknowledgment of service or file and serve a defence, then, unless on the application of the claimant the court orders the claim to be dismissed or discontinued, the claimant may apply to the court at the first hearing –
   1. for the claim to be dealt with summarily at that hearing; or
   2. for a trial date to be fixed and any necessary directions to be given.
4. Before applying for an order under paragraph (3) the claimant must file an affidavit proving due service of the claim form and statement of claim on the defendant.
5. If the court grants an order under paragraph (3), it may direct the proceedings to be tried on affidavit evidence.

 Counterclaim

68.7

1. A defendant to probate proceedings who alleges that he or she has any claim or is entitled to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of administration of the estate of the deceased person which is the subject of the proceedings must add to the defence a counterclaim for that relief or remedy.

Contents of statements of case

68.8

1. If the claimant in probate proceedings disputes the interest of a defendant, the claimant must –
   1. deny the interest of that defendant; and
   2. state the claimant’s reasons for so doing; in the statement of claim.
2. In probate proceedings in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in that party’s statement of case that if the allegations made therein are proved he or she would be entitled to an interest in the estate.
3. Any party who pleads that at the time when a will, the subject of the proceedings, was alleged to have been executed the testator did not know and approve of its contents, must specify the nature of the case on which he or she intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say that –
   1. at the time of the execution of the will the testator was not of sound mind, memory and understanding;
   2. the execution of the will was obtained by undue influence or fraud; or
   3. the will was not duly executed; may be made by that party unless that other plea is also set out in his or her statement of case.

Discontinuance and dismissal

68.9

1. Part 37 does not apply to probate proceedings.
2. At any stage of the proceedings the court may, on the application of the claimant or of any party to the proceedings who has entered an acknowledgment of service order the proceedings to be –
   1. discontinued; or
   2. dismissed; on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will, or letters of administration of  the estate of the deceased person, as the case may be, be made to the person entitled.

Compromise of claim: trial on affidavit evidence        

68.10

1. If, either before or after the service of the defence in probate proceed­ings, the parties to the proceedings agree to a compromise, the court may order the trial of the proceedings on affidavit evidence.

Application for order to bring in will, etc.

68.11

1. Any application in probate proceedings for an order requiring a person to bring a will or other testamentary paper into court or to attend in court for examination may be made without notice but must be supported by evidence on affidavit setting out the grounds of the application.
2. Any person against whom an order is made under paragraph (1) and who denies that the will or other testamentary paper referred to in the order is in his or her possession or under his or her control may file an affidavit to that effect.

Probate counterclaim in other proceedings

68.12

1. In this rule, “probate counterclaim” means a counterclaim in any claim other than probate proceedings by which the defendant claims any such relief as is mentioned in rule 68.1(2).
2. Subject to the following paragraph, this Part applies with the necessary modifications to a probate counterclaim as it applies to probate pro­ceedings.
3. A probate counterclaim must contain a statement of the nature of the interest of the defendant and of the claimant in the estate of the deceased person to which the counterclaim relates.