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Statutory Instruments

1987 No. 2024 (L. 10)

SUPREME COURT OF ENGLAND AND WALES

The Non-Contentious Probate Rules 1987

Made

24th November 1987

Laid before Parliament

10th December 1987

Coming into force

1st January 1988

The President of the Family Division, in exercise of the powers conferred upon him by section 127 of the Supreme Court Act 1981(1), and section 2(5) of the Colonial Probates Act 1892(2), and with the concurrence of the Lord Chancellor, hereby makes the following Rules:

Modifications etc. (not altering text)

Citation and commencementE+W

1.  These Rules may be cited as the Non-Contentious Probate Rules 1987 and shall come into force on 1st January 1988.

Commencement Information

I1Rule 1 in force at 1.1.1988, see rule 1

InterpretationE+W

2.—(1) In these Rules, unless the context otherwise requires—

“the Act” means the Supreme Court Act 1981;

“authorised officer” means any officer of a registry who is for the time being authorised by the President to administer any oath or to take any affidavit required for any purpose connected with his duties;

“the Crown” includes the Crown in right of the Duchy of Lancaster and the Duke of Cornwall for the time being;

[F1“district judge” means a district judge of the Principal Registry;]

“grant” means a grant of probate or administration and includes, where the context so admits, the resealing of such a grant under the Colonial Probates Acts 1892 and 1927(3);

“gross value” in relation to any estate means the value of the estate without deduction for debts, incumbrances, funeral expenses or inheritance tax (or other capital tax payable out of the estate);

[F2“judge” means a judge of the High Court;]

“personal applicant” means a person other than a trust corporation who seeks to obtain a grant without employing a solicitor [F3or probate practitioner], and “personal application” has a corresponding meaning;

[F4“probate practitioner” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes a probate activity (within the meaning of that Act);]

[F5“online portal” means the online portal established by Her Majesty’s Courts and Tribunals Service for the making of online applications under rules 4A (alternative procedure for applications through solicitors or probate practitioners), 5ZA (online procedure for personal applications) or 5A (alternative online procedure for personal applications);]

[F6“registrar” means the district probate registrar of the district probate registry–

(i)

to which an application for a grant is made or is proposed to be made,

(ii)

in rules 26, 40, 41 and 61(2), from which the grant issued, and

(iii)

in rules 46, 47 and 48, from which the citation has issued or is proposed to be issued;]

“registry” means the Principal Registry or a district probate registry;

[F7“the senior district judge” means the Senior District Judge of the Family Division or, in his absence, the senior of the district judges in attendance at the Principal Registry;]

[F8“statement of truth” means a statement made for the purposes of rule 8 (statement of truth) confirming the truthfulness of statements made in the application and the true nature of any documents served in support of the application;]

F9...

F9...

“the Treasury Solicitor” means the solicitor for the affairs of Her Majesty’s Treasury and includes the solicitor for the affairs of the Duchy of Lancaster and the solicitor of the Duchy of Cornwall;

“trust corporation” means a corporation within the meaning of section 128 of the Act as extended by section 3 of the Law of Property (Amendment) Act 1926(4).

(2) A form referred to by number means the form so numbered in the First Schedule; and such forms shall be used wherever applicable, with such variation as a [F10district judge or] registrar may in any particular case direct or approve.

Textual Amendments

F9Words in rule 2(1) omitted (14.10.1991) by virtue of The Non-Contentious Probate (Amendment) Rules 1991 (S.I. 1991/1876), rules. 1(1), 2

Commencement Information

I2Rule 2 in force at 1.1.1988, see rule 1

Application of other rulesE+W

[F113.—(1) Subject to the provisions of these rules and to any enactment, the Rules of the Supreme Court 1965 as they were in force immediately before 26th April 1999 shall apply, with any necessary modifications to non-contentious probate matters, and any reference in these rules to those rules shall be construed accordingly.

(2) Nothing in Order 3 of the Rules of the Supreme Court shall prevent time from running in the Long Vacation.]

Textual Amendments

Application for grants through solicitors [F12or probate practitioners] E+W

4.—(1) A person applying for a grant through a solicitor [F13or probate practitioner] may apply at any registry or sub-registry.

[F14(1A) A person applying for a grant through a solicitor or probate practitioner may also apply for a grant at any registry under rule 4A if invited to do so by that registry.]

(2) Every solicitor [F13or probate practitioner] through whom an application for a grant is made shall give the address of his place of business within England and Wales.

Textual Amendments

Commencement Information

I3Rule 4 in force at 1.1.1988, see rule 1

[F15Alternative procedure for applications through solicitors or probate practitionersE+W

4A.—(1) An application under this rule must be made by completing and sending an online application form in accordance with instructions given by the registry.

F16(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where original documents are required by instructions given by the registry to be sent in support of the application, they must be sent separately to the registry in accordance with such instructions.]

Textual Amendments

Personal applicationsE+W

5.—(1) A personal applicant may apply for a grant at any registry or sub-registry.

(2) Save as provided for by rule 39 a personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.

(3) No personal application shall be proceeded with if—

(a)it becomes necessary to bring the matter before the court by action or summons [F17, unless a judge, district judge or registrar so permits];

(b)an application has already been made by a solicitor [F18or probate practitioner] on behalf of the applicant and has not been withdrawn; or

(c)the [F19district judge or] registrar so directs.

(4) After a will has been deposited in a registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the [F20district judge or] registrar so directs.

(5) A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as [F21required by instructions given by the registry or as] the [F22district judge or] registrar may approve.

(6) A personal applicant shall supply all information necessary to enable the papers leading to the grant to be prepared [F23as required by instructions given by the registry].

(7) Unless the [F24district judge or] registrar otherwise directs, every F25... affidavit required on a personal application shall be sworn or executed by all the deponents before an authorised officer.

(8) No legal advice shall be given to a personal applicant by an officer of a registry and every such officer shall be responsible only for embodying in proper form the applicant’s instructions for the grant.

[F26(9) In any case where an application is made under rule 5ZA (online procedure for personal applications), this rule applies with the exceptions and modifications provided for by that rule.]

[F27(10) In any case where an application is made under rule 5A (alternative online procedure for personal applications), this rule applies with the exceptions and modifications provided for by that rule.]

Textual Amendments

Commencement Information

I4Rule 5 in force at 1.1.1988, see rule 1

[F28Online procedure for personal applicationsE+W

5ZA.—(1) Without prejudice to rule 5A (alternative online applications for personal applications), a personal applicant may make an application for a grant online using the online portal.

(2) An application under this rule must be made by completing and sending the online application form provided through the online portal and electronically paying the appropriate fee.

(3) Where an application is made under this rule, rule 5 applies with the following exceptions and modifications—

(a)paragraphs (1), (7) and (8) do not apply; and

(b)paragraphs (5) and (6) apply as if, for the words after “required by” there were substituted “the online application form”.

(4) Where original documents are required to be sent in support of the application, these must be sent separately in accordance with instructions given through the online portal.]

Textual Amendments

[F29[F30Alternative online] procedure for personal applicationsE+W

5A.—(1) A personal applicant may apply for a grant at any registry under this rule if invited to do so by that registry.

(2) An application under this rule must be made by completing and sending an online application form [F31(paying the appropriate fee electronically)] in accordance with instructions given by the registry.

(3) Where an application is made under this rule, rule 5 applies with the following exceptions and modifications—

(a)paragraphs (1), (7) and (8) do not apply;

F32(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)paragraph (6) applies as if for the words after “information” there were substituted “required by instructions given by the registry”.

F33(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Where original documents are required by instructions given by the registry to be sent in support of the application, they must be sent separately to the registry in accordance with such instructions.]

Textual Amendments

Personal applications using statement of truthE+W

F345B.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Duty of [F35district judge or] registrar on receiving application for grantE+W

6.—(1) A [F36district judge or] registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.

(2) Except with the leave of a [F37district judge or] registrar, no grant of probate or of administration with the will annexed shall issue within seven days of the death of the deceased and no grant of administration shall issue within fourteen days thereof.

Textual Amendments

Commencement Information

I5Rule 6 in force at 1.1.1988, see rule 1

Grants by F38... registrarsE+W

7.—(1) No grant shall be made by a F38... registrar—

(a)in any case in which there is contention, until the contention is disposed of; or

(b)in any case in which it appears to him that a grant ought not to be made without the directions of a judge or a [F39district judge].

(2) In any case in which paragraph (1)(b) applies, the F38... registrar shall send a statement of the matter in question to the Principal Registry for directions.

(3) A [F40district judge] may either confirm that the matter be referred to a judge and give directions accordingly or may direct the F38... to proceed with the matter in accordance with such instructions as are deemed necessary, which may include a direction to take no further action in relation to the matter.

Textual Amendments

Commencement Information

I6Rule 7 in force at 1.1.1988, see rule 1

[F41Statement of truth] in support of grantE+W

8.—(1) Every application for a grant other than one to which rule 39 applies shall be supported [F42by—

(a)a statement of truth; and

(b)such other papers,

as required by the district judge, registrar or instructions given through the online portal.]

(2) Unless otherwise directed by a [F43district judge or] registrar, [F44the applicant must state in the application] where the deceased died domiciled.

(3) Where the deceased died on or after 1st January 1926, [F45the applicant must state in the application] whether or not, to the best of the applicant’s knowledge, information and belief, there was land vested in the deceased which was settled previously to his death and not by his will and which remained settled land notwithstanding his death.

(4) On an application for a grant of administration [F46the applicant must state in the application] in what manner all persons having a prior right to a grant have been cleared off and whether any minority or life interest arises under the will or intestacy.

Textual Amendments

Commencement Information

I7Rule 8 in force at 1.1.1988, see rule 1

Grant in additional nameE+W

9.  Where it is sought to describe the deceased in a grant by some name in addition to his true name, the applicant [F47must state in the application] the true name of the deceased and shall specify some part of the estate which was held in the other name, or give any other reason for the inclusion of the other name in the grant.

Textual Amendments

Commencement Information

I8Rule 9 in force at 1.1.1988, see rule 1

[F48Exhibition of wills] E+W

10.—(1) Subject to paragraph (2) below, every will in respect of which an application for a grant is made—

F49(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)shall be exhibited to any affidavit which may be required under these Rules as to the validity, terms, condition or date of execution of the will.

(2) The [F50district judge or] registrar may allow a facsimile copy of a will to be F51... exhibited in lieu of the original document.

Textual Amendments

Commencement Information

I9Rule 10 in force at 1.1.1988, see rule 1

Engrossments for purposes of recordE+W

11.—(1) Where the [F52district judge or] registrar considers that in any particular case a facsimile copy of the original will would not be satisfactory for purposes of record, he may require an engrossment suitable for facsimile reproduction to be lodged.

(2) Where a will—

(a)contains alterations which are not to be admitted to proof; or

(b)has been ordered to be rectified by virtue of section 20(1) of the Administration of Justice Act 1982(5),

there shall be lodged an engrossment of the will in the form in which it is to be proved.

(3) Any engrossment lodged under this rule shall reproduce the punctuation, spacing and division into paragraphs of the will and shall follow continuously from page to page on both sides of the paper.

Textual Amendments

Commencement Information

I10Rule 11 in force at 1.1.1988, see rule 1

Evidence as to due execution of willE+W

12.—(1) Subject to paragraphs (2) and (3) below, where a will contains no attestation clause or the attestation clause is insufficient, or where it appears to the [F53district judge or] registrar that there is doubt about the due execution of the will, he shall before admitting it to proof require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present when the will was executed; and if the [F53district judge or]registrar, after considering the evidence, is satisfied that the will was not duly executed, he shall refuse probate and mark the will accordingly.

(2) If no affidavit can be obtained in accordance with paragraph (1) above, the [F53district judge or] registrar may accept evidence on affidavit from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of due execution of the will, and may if he thinks fit require that notice of the application be given to any person who may be prejudiced by the will.

(3) A [F53district judge or] registrar may accept a will for proof without evidence as aforesaid if he is satisfied that the distribution of the estate is not thereby affected.

Textual Amendments

Commencement Information

I11Rule 12 in force at 1.1.1988, see rule 1

Execution of will of blind or illiterate testatorE+W

13.  Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason raises doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the [F54district judge or] registrar shall satisfy himself that the testator had such knowledge.

Textual Amendments

Commencement Information

I12Rule 13 in force at 1.1.1988, see rule 1

Evidence as to terms, condition and date of execution of willE+W

14.—(1) Subject to paragraph (2) below, where there appears in a will any obliteration, interlineation, or other alteration which is not authenticated in the manner prescribed by section 21 of the Wills Act 1837(6), or by the re-execution of the will or by the execution of a codicil, the [F55district judge or] registrar shall require evidence to show whether the alteration was present at the time the will was executed and shall give directions as to the form in which the will is to be proved.

(2) The provisions of paragraph (1) above shall not apply to any alteration which appears to the [F55district judge or] registrar to be of no practical importance.

(3) If a will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the [F55district judge or] registrar shall require the document to be produced and may call for such evidence in regard to the incorporation of the document as he may think fit.

(4) Where there is a doubt as to the date on which a will was executed, the [F55district judge or] registrar may require such evidence as he thinks necessary to establish the date.

Textual Amendments

Commencement Information

I13Rule 14 in force at 1.1.1988, see rule 1

Attempted revocation of willE+W

15.  Any appearance of attempted revocation of a will by burning, tearing, or otherwise destroying and every other circumstance leading to a presumption of revocation by the testator, shall be accounted for to the [F56district judge’s or] registrar’s satisfaction.

Textual Amendments

Commencement Information

I14Rule 15 in force at 1.1.1988, see rule 1

Affidavit as to due execution, terms, etc., of willE+W

16.  A [F57district judge or] registrar may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 13, 14 and 15, and in any such affidavit sworn by an attesting witness or other person present at the time of the execution of a will the deponent shall depose to the manner in which the will was executed.

Textual Amendments

Commencement Information

I15Rule 16 in force at 1.1.1988, see rule 1

Wills proved otherwise than under section 9 of the Wills Act 1837E+W

17.—(1) Rules 12 to 15 shall apply only to a will that is to be established by reference to section 9 of the Wills Act 1837 (signing and attestation of wills).

(2) A will that is to be established otherwise than as described in paragraph (1) of this rule may be so established upon the [F58district judge or] registrar being satisfied as to its terms and validity, and includes (without prejudice to the generality of the foregoing)—

(a)any will to which rule 18 applies; and

(b)any will which, by virtue of the Wills Act 1963(7), is to be treated as properly executed if executed according to the internal law of the territory or state referred to in section 1 of that Act.

Textual Amendments

Commencement Information

I16Rule 17 in force at 1.1.1988, see rule 1

Wills of persons on military service and seamenE+W

18.  Where the deceased died domiciled in England and Wales and it appears to the [F59district judge or] registrar that there is prima facie evidence that a will is one to which section 11 of the Wills Act 1837 applies, the will may be admitted to proof if the [F59district judge or] registrar is satisfied that it was signed by the testator or, if unsigned, that it is in the testator’s handwriting.

Textual Amendments

Commencement Information

I17Rule 18 in force at 1.1.1988, see rule 1

Evidence of foreign lawE+W

19.  Where evidence as to the law of any country or territory outside England and Wales is required on any application for a grant, the [F60district judge or] registrar may accept—

(a)an affidavit from any person whom, having regard to the particulars of his knowledge or experience given in the affidavit, he regards as suitably qualified to give expert evidence of the law in question; or

(b)a certificate by, or an act before, a notary practising in the country or territory concerned.

Textual Amendments

Commencement Information

I18Rule 19 in force at 1.1.1988, see rule 1

Order of priority for grant where deceased left a willE+W

20.  Where the deceased died on or after 1 January 1926 the person or persons entitled to a grant in respect of a will shall be determined in accordance with the following order of priority, namely—

(a)the executor (but subject to rule 36(4)(d) below);

(b)any residuary legatee or devisee holding in trust for any other person;

(c)any other residuary legatee or devisee (including one for life) or where the residue is not wholly disposed of by the will, any person entitled to share in the undisposed of residue (including the Treasury Solicitor when claiming bona vacantia on behalf of the Crown), provided that—

(i)unless a [F61district judge or] registrar otherwise directs, a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency, and

(ii)where the residue is not in terms wholly disposed of, the [F61district judge or] registrar may, if he is satisfied that the testator has nevertheless disposed of the whole or substantially the whole of the known estate, 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 persons entitled to share in any residue not disposed of by the will;

(d)the personal representative of any residuary legatee or devisee (but not one for life, or one holding in trust for any other person), or of any person entitled to share in any residue not disposed of by the will;

(e)any other legatee or devisee (including one for life or one holding in trust for any other person) or any creditor of the deceased, provided that, unless a [F62district judge or] registrar otherwise directs, a legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency;

(f)the personal representative of any other legatee or devisee (but not one for life or one holding in trust for any other person) or of any creditor of the deceased.

Textual Amendments

Commencement Information

I19Rule 20 in force at 1.1.1988, see rule 1

Grants to attesting witnesses, etcE+W

21.  Where a gift to any person fails by reason of section 15 of the Wills Act 1837(8), such person shall not have any right to a grant as a beneficiary named in the will, without prejudice to his right to a grant in any other capacity.

Commencement Information

I20Rule 21 in force at 1.1.1988, see rule 1

Order of priority for grant in case of intestacyE+W

22.—(1) Where the deceased died on or after 1 January 1926, wholly intestate, the person or persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following classes in order of priority, namely—

(a)the surviving [F63spouse or civil partner];

(b)the children of the deceased and the issue of any deceased child who died before the deceased;

(c)the father and mother of the deceased;

(d)brothers and sisters of the whole blood and the issue of any deceased brother or sister of the whole blood who died before the deceased;

(e)brothers and sisters of the half blood and the issue of any deceased brother or sister of the half blood who died before the deceased;

(f)grandparents;

(g)uncles and aunts of the whole blood and the issue of any deceased uncle or aunt of the whole blood who died before the deceased;

(h)uncles and aunts of the half blood and the issue of any deceased uncle or aunt of the half blood who died before the deceased.

(2) In default of any person having a beneficial interest in the estate, the Treasury Solicitor shall be entitled to a grant if he claims bona vacantia on behalf of the Crown.

(3) If all persons entitled to a grant under the foregoing provisions of this rule have been cleared off, a grant may be made to a creditor of the deceased or to any person who, notwithstanding that he has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion thereto.

(4) Subject to paragraph (5) of rule 27, the personal representative of a person in any of the classes mentioned in paragraph (1) of this rule or the personal representative of a creditor of the deceased shall have the same right to a grant as the person whom he represents provided that the persons mentioned in sub-paragraphs (b) to (h) of paragraph (1) above shall be preferred to the personal representative of a spouse [F64or a civil partner] who has died without taking a beneficial interest in the whole estate of the deceased as ascertained at the time of the application for the grant.

Textual Amendments

Commencement Information

I21Rule 22 in force at 1.1.1988, see rule 1

Order of priority for grant in pre-1926 casesE+W

23.  Where the deceased died before 1st January 1926, the person or persons entitled to a grant shall, subject to the provisions of any enactment, be determined in accordance with the principles and rules under which the court would have acted at the date of death.

Commencement Information

I22Rule 23 in force at 1.1.1988, see rule 1

Right of assignee to a grantE+W

24.—(1) Where all the persons entitled to the estate of the deceased (whether under a will or on intestacy) have assigned their whole interest in the estate to one or more persons, the assignee or assignees shall replace, in the order of priority for a grant of administration, the assignor or, if there are two or more assignors, the assignor with the highest priority.

(2) Where there are two or more assignees, administration may be granted with the consent of the others to any one or more (not exceeding four) of them.

(3) In any case where administration is applied for by an assignee the original instrument of assignment shall be produced and a copy of the same lodged in the registry.

Commencement Information

I23Rule 24 in force at 1.1.1988, see rule 1

Joinder of administratorE+W

25.—(1) A person entitled in priority to a grant of administration may, without leave, apply for a grant with a person entitled in a lower degree, provided that there is no other person entitled in a higher degree to the person to be joined, unless every other such person has renounced.

(2) Subject to paragraph (3) below, an application for leave to join with a person entitled in priority to a grant of administration a person having no right or no immediate right thereto shall be made to a [F65district judge or] registrar, and shall be supported by an affidavit by the person entitled in priority, the consent of the person proposed to be joined as administrator and such other evidence as the [F65district judge or] registrar may direct.

(3) Unless a [F66district judge or] registrar otherwise directs, there may without any such application be joined with a person entitled in priority to administration—

(a)any person who is nominated under paragraph (3) of rule 32 or paragraph (3) of rule 35;

(b)a trust corporation.

Textual Amendments

Commencement Information

I24Rule 25 in force at 1.1.1988, see rule 1

Additional personal representativesE+W

26.—(1) An application under section 114(4) of the Act to add a personal representative shall be made to a [F67district judge or] registrar and shall be supported by an affidavit by the applicant, the consent of the person proposed to be added as personal representative and such other evidence as the [F67district judge or] registrar may require.

(2) On any such application the [F68district judge or] registrar may direct that a note shall be made on the original grant of the addition of a further personal representative, or he may impound or revoke the grant or make such other order as the circumstances of the case may require.

Textual Amendments

Commencement Information

I25Rule 26 in force at 1.1.1988, see rule 1

Grants where two or more persons entitled in same degreeE+W

27.—[F69(1) Subject to paragraphs (1A), (2) and (3) below, where, on an application for probate, power to apply for a like grant is to be reserved to such other of the executors as have not renounced probate, notice of the application shall be given to the executor or executors to whom power is to be reserved; and, unless the district judge or registrar otherwise directs, [F70the applicant must state in the application] that such notice has been given.

(1A) Where power is to be reserved to executors who are F71... partners in a firm, F71... notice need not be given to them under paragraph (1) above if probate is applied for by another partner in that firm.]

(2) Where power is to be reserved to partners of a firm, notice for the purposes of paragraph (1) above may be given to the partners by sending it to the firm at its principal or last known place of business.

(3) A [F72district judge or] registrar may dispense with the giving of notice under paragraph (1) above if he is satisfied that the giving of such a notice is impracticable or would result in unreasonable delay or expense.

(4) A grant of administration may be made to any person entitled thereto without notice to other persons entitled in the same degree.

(5) Unless a [F73district judge or] registrar otherwise directs, administration shall be granted to a person of full age entitled thereto in preference to a guardian of a minor, and to a living person entitled thereto in preference to the personal representative of a deceased person.

(6) A dispute between persons entitled to a grant in the same degree shall be brought by summons before a [F74district judge or] registrar.

[F75(7) The issue of a summons under this rule in a registry shall be noted forthwith in the index of pending grant applications.]

(8) If the issue of a summons under this rule is known to the [F76district judge or] registrar, he shall not allow any grant to be sealed until such summons is finally disposed of.

Textual Amendments

Commencement Information

I26Rule 27 in force at 1.1.1988, see rule 1

Exceptions to rules as to priorityE+W

28.—(1) Any person to whom a grant may or is required to be made under any enactment shall not be prevented from obtaining such a grant notwithstanding the operation of rules 20, 22, 25 or 27.

(2) Where the deceased died domiciled outside England and Wales rules 20, 22, 25 or 27 shall not apply except in a case to which paragraph (3) of rule 30 applies.

Commencement Information

I27Rule 28 in force at 1.1.1988, see rule 1

Grants in respect of settled landE+W

[F7729.—(1) In this rule “settled land” means land vested in the deceased which was settled prior to his death and not by his will, and which remained settled land notwithstanding his death.

(2) The person or persons entitled to a grant of administration limited to settled land shall be determined in accordance with the following order of priority:

(i)the special executors in regard to settled land constituted by section 22 of the Administration of Estates Act 1925;

(ii)the trustees of the settlement at the time of the application for the grant; and

(iii)the personal representatives of the deceased.

(3) Where there is settled land and a grant is made in respect of the free estate only, the grant shall expressly exclude the settled land.]

Textual Amendments

Grants where deceased died domiciled outside England and WalesE+W

30.—(1) Subject to paragraph (3) below, where the deceased died domiciled outside England and Wales, [F78a district judge or registrar may order that a grant, limited in such way as the district judge or registrar may direct,] do issue to any of the following persons—

(a)to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or

(b)where there is no person so entrusted, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the [F79district judge or] registrar may direct; or

(c)if in the opinion of the registrar the circumstances so require, to such person as the [F79district judge or] registrar may direct.

(2) A grant made under paragraph (1)(a) or (b) above may be issued jointly with such person as the [F80district judge or] registrar may direct if the grant is required to be made to not less than two administrators.

(3) Without any order made under paragraph (1) above—

(a)probate of any will which is admissible to proof may be granted—

(i)if the will is in the English or Welsh language, to the executor named therein; or

(ii)if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person; and

(b)where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased had died domiciled in England and Wales.

Textual Amendments

Commencement Information

I28Rule 30 in force at 1.1.1988, see rule 1

Grants to attorneysE+W

31.—(1) Subject to paragraphs (2) and (3) below, the lawfully constituted attorney of a person entitled to a grant may apply for administration for the use and benefit of the donor, and such grant shall be limited until further representation be granted, or in such other way as the [F81district judge or] registrar may direct.

(2) Where the donor referred to in paragraph (1) above is an executor, notice of the application shall be given to any other executor unless such notice is dispensed with by the [F82district judge or] registrar.

[F83(3) Where the donor referred to in paragraph (1) above lacks capacity within the meaning of the Mental Capacity Act 2005 (c.9) and the attorney is acting under an enduring power of attorney or lasting power of attorney, the application shall be made in accordance with rule 35.]

Textual Amendments

Commencement Information

I29Rule 31 in force at 1.1.1988, see rule 1

Grants on behalf of minorsE+W

32.—(1) Where a person to whom a grant would otherwise be made is a minor, administration for his use and benefit, limited until he attains the age of eighteen years, shall, unless otherwise directed, and subject to paragraph (2) of this rule, be granted to

[F84(a)a parent of the minor who has, or is deemed to have, parental responsibility for him in accordance with–

[F85(i)section 2(1), 2(1A), 2(2), 2(2A), 4 or 4ZA of the Children Act 1989,]

(ii)paragraph 4 or 6 of Schedule 14 to that Act, or

(iii)an adoption order within the meaning of section 12(1) of the Adoption Act 1976 [F86or section 46(1) of the Adoption and Children Act 2002], or

[F87(aa)a person who has, or is deemed to have, parental responsibility for the minor by virtue of section 12(2) of the Children Act 1989 where the court has made a [F88child arrangements order under section 8 of that Act which names that person as a person with whom the minor is to live]; or]

[F89(ab)a step-parent of the minor who has parental responsibility for him in accordance with section 4A of the Children Act 1989; or]

(b)a guardian of the minor who is appointed, or deemed to have been appointed, in accordance with section 5 of the Children Act 1989 or in accordance with paragraph 12, 13 or 14 of Schedule 14 to that Act]; [F90or]

[F91(ba)a special guardian of the minor who is appointed in accordance with section 14A of the Children Act 1989; or

(bb)an adoption agency which has parental responsibility for the minor by virtue of section 25(2) of the Adoption and Children Act 2002; or]

[F92(c)a local authority which has, or is deemed to have, parental responsibility for the minor by virtue of section 33(3) of the Children Act 1989 where the court has made a care order under section 31(1)(a) of that Act in respect of the minor and that local authority is designated in that order;]

provided that where the minor is sole executor and has no interest in the residuary estate of the deceased, administration for the use and benefit of the minor limited as aforesaid, shall, unless a [F93district judge or] registrar otherwise directs, be granted to the person entitled to the residuary estate.

[F94(2) A district judge or registrar may by order appoint a person to obtain administration for the use and benefit of the minor, limited as aforesaid, in default of, or jointly with, or to the exclusion of, any person mentioned in paragraph (1) of this rule; and the person intended shall file an affidavit in support of his application to be appointed.]

(3) Where there is only one person competent and willing to take a grant under the foregoing provisions of this rule, such person may, unless a [F95district judge or] registrar otherwise directs, nominate any fit and proper person to act jointly with him in taking the grant.

Textual Amendments

Commencement Information

I30Rule 32 in force at 1.1.1988, see rule 1

Grants where a minor is a co-executorE+W

33.—(1) Where a minor is appointed executor jointly with one or more other executors, probate may be granted to the executor or executors not under disability with power reserved to the minor executor, and the minor executor shall be entitled to apply for probate on attaining the age of eighteen years.

(2) Administration for the use and benefit of a minor executor until he attains the age of eighteen years may be granted under rule 32 if, and only if, the executors who are not under disability renounce or, on being cited to accept or refuse a grant, fail to make an effective application therefor.

Commencement Information

I31Rule 33 in force at 1.1.1988, see rule 1

Renunciation of the right of a minor to a grantE+W

34.—(1) The right of a minor executor to probate on attaining the age of eighteen years may not be renounced by any person on his behalf.

(2) The right of a minor to administration may be renounced only by a person [F96appointed] under paragraph (2) of rule 32, and authorised by the [F97district judge or] registrar to renounce on behalf of the minor.

Textual Amendments

Commencement Information

I32Rule 34 in force at 1.1.1988, see rule 1

Grants in case of [F98lack of mental capacity] E+W

35.—(1) Unless a [F99district judge or] registrar otherwise directs, no grant shall be made under this rule unless all persons entitled in the same degree as the [F100person who lacks capacity within the meaning of the Mental Capacity Act 2005] referred to in paragraph (2) below have been cleared off.

(2) Where a [F99district judge or] registrar is satisfied that a person entitled to a grant [F101lacks capacity within the meaning of the Mental Capacity Act 2005 to manage] his affairs, administration for his use and benefit, limited until further representation be granted or in such other way as the [F99district judge or] registrar may direct, may be granted in the following order of priority—

(a)to the person authorised by the Court of Protection to apply for a grant;

(b)where there is no person so authorised, to the lawful attorney of the [F102person who lacks capacity within the meaning of the Mental Capacity Act 2005] acting under a registered enduring power of attorney [F103or lasting power of attorney];

(c)where there is no such attorney entitled to act, or if the attorney shall renounce administration for the use and benefit of the [F102person who lacks capacity within the meaning of the Mental Capacity Act 2005], to the person entitled to the residuary estate of the deceased.

(3) Where a grant is required to be made to not less than two administrators, and there is only one person competent and willing to take a grant under the foregoing provisions of this rule, administration may, unless a [F99district judge or] registrar otherwise directs, be granted to such person jointly with any other person nominated by him.

(4) Notwithstanding the foregoing provisions of this rule, administration for the use and benefit of the [F104person who lacks capacity within the meaning of the Mental Capacity Act 2005] may be granted to such [F105other person] as the [F99district judge or] registrar may by order direct.

(5) [F106Unless the applicant is the person authorised in paragraph (2)(a) above,] notice of an intended application under this rule shall be given to the Court of Protection.

Textual Amendments

Commencement Information

I33Rule 35 in force at 1.1.1988, see rule 1

Grants to trust corporations and other corporate bodiesE+W

36.—(1) An application for a grant to a trust corporation shall be made through one of its officers, and such officer [F107must state in the application] that the corporation is a trust corporation as defined by these Rules and that it has power to accept a grant.

(2) (a) Where the trust corporation is the holder of an official position, any officer whose name is included on a list filed with the [F108senior district judge] of persons authorised to make affidavits and sign documents on behalf of the office holder may act as the officer through whom the holder of that official position applies for the grant.

(b)In all other cases a certified copy of the resolution of the trust corporation authorising the officer to make the application shall be lodged, or [F109the application must include a statement] that such certified copy has been filed with the [F108senior district judge], that the officer is therein identified by the position he holds, and that such resolution is still in force.

(3) A trust corporation may apply for administration otherwise than as a beneficiary or the attorney of some person, and on any such application there shall be lodged the consents of all persons entitled to a grant and of all persons interested in the residuary estate of the deceased save that the [F110district judge or] registrar may dispense with any such consents as aforesaid on such terms, if any, as he may think fit.

(4) (a) Subject to sub-paragraph (d) below, where a corporate body would, if an individual, be entitled to a grant but is not a trust corporation as defined by these Rules, administration for its use and benefit, limited until further representation be granted, may be made to its nominee or to its lawfully constituted attorney.

(b)A copy of the resolution appointing the nominee or the power of attorney (whichever is appropriate) shall be lodged, and such resolution or power of attorney shall be sealed by the corporate body, or be otherwise authenticated to the [F111district judge’s or] registrar’s satisfaction.

(c)The nominee or attorney [F112must state in the application] that the corporate body is not a trust corporation as defined by these Rules.

(d)The provisions of paragraph (4)(a) above shall not apply where a corporate body is appointed executor jointly with an individual unless the right of the individual has been cleared off.

Textual Amendments

Commencement Information

I34Rule 36 in force at 1.1.1988, see rule 1

Renunciation of probate and administrationE+W

37.—(1) Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.

(2) Unless a [F113district judge or] registrar otherwise directs, no person who has renounced administration in one capacity may obtain a grant thereof in some other capacity.

[F114(2A) Renunciation of probate or administration by members of a partnership—

(a)may be effected, or

(b)subject to paragraph (3) below, may be retracted by any two of them with the authority of the others and any such renunciation or retraction shall recite such authority.]

(3) A renunciation of probate or administration may be retracted at any time with the leave of a [F115district judge or] registrar; provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree.

(4) A direction or order giving leave under this rule may be made either by the registrar of a district probate registry where the renunciation is filed or by a [F116district judge].

Textual Amendments

Commencement Information

I35Rule 37 in force at 1.1.1988, see rule 1

Notice to Crown of intended application for grantE+W

38.  In any case in which it appears that the Crown is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant shall be given by the applicant to the Treasury Solicitor, and the [F117district judge or] registrar may direct that no grant shall issue within 28 days after the notice has been given.

Textual Amendments

Commencement Information

I36Rule 38 in force at 1.1.1988, see rule 1

Resealing under Colonial Probates Acts 1892 and 1927E+W

39.—(1) An application under the Colonial Probates Acts 1892 and 1927(9) for the resealing of probate or administration granted by the court of a country to which those Acts apply may be made by the person to whom the grant was made or by any person authorised in writing to apply on his behalf.

(2) On any such application an Inland Revenue affidavit or account shall be lodged.

(3) Except by leave of a [F118district judge or] registrar, no grant shall be resealed unless it was made to such a person as is mentioned in sub-paragraph (a) or (b) of paragraph (1) of rule 30 or to a person to whom a grant could be made under sub-paragraph (a) of paragraph (3) of that rule.

(4) No limited or temporary grant shall be resealed except by leave of a [F119district judge or] registrar.

(5) Every grant lodged for resealing shall include a copy of any will to which the grant relates or shall be accompanied by a copy thereof certified as correct by or under the authority of the court by which the grant was made, and where the copy of the grant required to be deposited under subsection (1) of section 2 of the Colonial Probates Act 1892 does not include a copy of the will, a copy thereof shall be deposited in the registry before the grant is resealed.

(6) The [F120district judge or] registrar shall send notice of the resealing to the court which made the grant.

(7) Where notice is received in the Principal Registry of the resealing of a grant issued in England and Wales, notice of any amendment or revocation of the grant shall be sent to the court by which it was resealed.

Textual Amendments

Commencement Information

I37Rule 39 in force at 1.1.1988, see rule 1

Application for leave to sue on guaranteeE+W

40.  An application for leave under section 120(3) of the Act or under section 11(5) of the Administration of Estates Act 1971(10) to sue a surety on a guarantee given for the purposes of either of those sections shall, unless the [F121district judge or] registrar otherwise directs under rule 61, be made by summons to a [F121district judge or] registrar and notice of the application shall be served on the administrator, the surety and any co-surety.

Textual Amendments

Commencement Information

I38Rule 40 in force at 1.1.1988, see rule 1

Amendment and revocation of grantE+W

41.—(1) Subject to paragraph (2) below, if a [F122district judge or] registrar is satisfied that a grant should be amended or revoked he may make an order accordingly.

(2) Except on the application or with the consent of the person to whom the grant was made, the power conferred in paragraph (1) above shall be exercised only in exceptional circumstances.

Textual Amendments

Commencement Information

I39Rule 41 in force at 1.1.1988, see rule 1

Certificate of delivery of Inland Revenue affidavitE+W

42.  Where the deceased died before 13th March 1975 the certificate of delivery of an Inland Revenue affidavit required by section 30 of the Customs and Inland Revenue Act 1881(11) to be borne by every grant shall be in Form 1.

Commencement Information

I40Rule 42 in force at 1.1.1988, see rule 1

Standing searchesE+W

43.—[F123(1) Any person who wishes to be notified of the issue of a grant may enter a standing search for the grant [F124by—

(a)lodging at any registry or sub-registry;

(b)sending by post to any registry or sub-registry; or

(c)sending by electronic means (paying the appropriate fee electronically) to any registry or sub-registry using an address provided for the purpose,]

a notice in Form 2.]

(2) A person who has entered a standing search will be sent an office copy of any grant which corresponds with the particulars given on the completed Form 2 and which—

(a)issued not more than twelve months before the entry of the standing search; or

(b)issues within a period of six months after the entry of the standing search.

(3) (a) Where an applicant wishes to extend the said period of six months, he or his solicitor [F125or probate practitioner] may lodge at, or send by post [F126or by electronic means (paying the appropriate fee electronically) using an address provided for the purpose,] to, [F127the registry or sub-registry at which the standing search was entered] written application for extension.

(b)An application for extension as aforesaid must be lodged, or received by post [F128or electronic means], within the last month of the said period of six months, and the standing search shall thereupon be effective for an additional period of six months from the date on which it was due to expire.

(c)A standing search which has been extended as above may be further extended by the filing of a further application for extension subject to the same conditions as set out in sub-paragraph (b) above.

Textual Amendments

F124Rule 43(1)(a)-(c) and word substituted for words in rule 43(1) (27.11.2018) by The Non-Contentious Probate (Amendment) Rules 2018 (S.I. 2018/1137), rules 1(1), 13(2)

Commencement Information

I41Rule 43 in force at 1.1.1988, see rule 1

CaveatsE+W

44.—(1) Any person who wishes to show cause against the sealing of a grant may enter a caveat in any registry or sub-registry, and the [F129district judge or] registrar shall not allow any grant to be sealed (other than a grant ad colligenda bona or a grant under section 117 of the Act) if he has knowledge of an effective caveat; provided that no caveat shall prevent the sealing of a grant on the day on which the caveat is entered.

(2) Any person wishing to enter a caveat (in these Rules called “the caveator”), or a solicitor [F130or probate practitioner] on his behalf, may effect entry of a caveat—

(a)by completing Form 3 in the appropriate book at any registry or sub-registry; or

(b)[F131by—

(i)sending by post at the caveator’s own risk; or

(ii)sending by electronic means at the caveator’s own risk (paying the appropriate fee electronically) using an address provided for the purpose,]

a notice in Form 3 to any registry or sub-registry and the proper officer shall provide an acknowledgement of the entry of the caveat.

(3) (a) Except as otherwise provided by this rule or by rules 45 or 46, a caveat shall be effective for a period of six months from the date of entry thereof, and where a caveator wishes to extend the said period of six months, he or his solicitor [F132or probate practitioner] [F133may—

(i)lodge at;

(ii)send by post to; or

(ii)send by electronic means (paying the appropriate fee electronically) using an address provided for the purpose, to]

the registry or sub-registry at which the caveat was entered a written application for extension.

(b)An application for extension as aforesaid must be lodged, or received by post [F134or by electronic means], within the last month of the said period of six months, and the caveat shall thereupon (save as otherwise provided by this rule) be effective for an additional period of six months from the date on which it was due to expire.

(c)A caveat which has been extended as above may be further extended by the filing of a further application for extension subject to the same conditions as set out in sub-paragraph (b) above.

[F135(4) An index of caveats entered in any registry or sub-registry shall be maintained and upon receipt of an application for a grant, the registry or sub-registry at which the application is made shall cause a search of the index to be made and the appropriate district judge or registrar shall be notified of the entry of a caveat against the sealing of a grant for which the application has been made.]

(5) Any person claiming to have an interest in the estate may cause to be issued from the [F136nominated registry] a warning in Form 4 against the caveat, and the person warning shall state his interest in the estate of the deceased and shall require the caveator to give particulars of any contrary interest in the estate; and the warning or a copy thereof shall be served on the caveator forthwith.

(6) A caveator who has no interest contrary to that of the person warning, but who wishes to show cause against the sealing of a grant to that person, may within [F13714] days of service of the warning upon him (inclusive of the day of such service), or at any time thereafter if no affidavit has been filed under paragraph (12) below, issue and serve a summons for directions.

(7) On the hearing of any summons for directions under paragraph (6) above the [F138district judge or] registrar may give a direction for the caveat to cease to have effect.

(8) Any caveat in force when a summons for directions is issued shall remain in force until the summons has been disposed of unless a direction has been given under paragraph (7) above [F139or until it is withdrawn under paragraph (11) below].

(9) The issue of a summons under this rule shall be notified forthwith to the [F140nominated registry].

(10) A caveator having an interest contrary to that of the person warning may within [F14114] days of service of the warning upon him (inclusive of the day of such service) or at any time thereafter if no affidavit has been filed under paragraph (12) below, enter an appearance in the [F142nominated registry] by filing Form 5 F143...; and he shall serve forthwith on the person warning a copy of Form 5 sealed with the seal of the court.

(11) A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the registry or sub-registry at which it was entered, and the caveat shall thereupon cease to have effect; and, where the caveat has been so withdrawn, the caveator shall forthwith give notice of withdrawal to the person warning.

(12) If no appearance has been entered by the caveator or no summons has been issued by him under paragraph (6) of this rule, the person warning may at any time after [F14414] days of service of the warning upon the caveator (inclusive of the day of such service) file an affidavit in the [F145nominated registry] as to such service and the caveat shall thereupon cease to have effect provided that there is no pending summons under paragraph (6) of this rule.

(13) Unless a [F146district judge F147... a registrar] by order made on summons otherwise directs, any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action.

(14) Except with the leave of a [F148district judge] [F149or registrar], no further caveat may be entered by or on behalf of any caveator whose caveat is either in force or has ceased to have effect under paragraphs (7) or (12) of this rule or under rule 45(4) or rule 46(3).

[F150(15) In this rule, “nominated registry” means the registry nominated for the purpose of this rule by the senior district judge or in the absence of any such nomination the Leeds District Probate Registry.]

Textual Amendments

F131Rule 44(2)(b)(i)(ii) and word substituted for words in rule 44(2)(b) (27.11.2018) by The Non-Contentious Probate (Amendment) Rules 2018 (S.I. 2018/1137), rules 1(1), 14(2)

F133Rule 44(3)(a)(i)-(iii) and word substituted for words in rule 44(3)(a) (27.11.2018) by The Non-Contentious Probate (Amendment) Rules 2018 (S.I. 2018/1137), rules 1(1), 14(3)

F143Words in rule 44(10) omitted (14.10.1991) by virtue of The Non-Contentious Probate (Amendment) Rules 1991 (S.I. 1991/1876), rules 1(1), 12(2)

Commencement Information

I42Rule 44 in force at 1.1.1988, see rule 1

Probate actionsE+W

45.—(1) Upon being advised by the court concerned of the commencement of a probate action the [F151senior district judge] shall give notice of the action to every caveator other than the plaintiff in the action in respect of each caveat that is in force.

(2) In respect of any caveat entered subsequent to the commencement of a probate action the [F152senior district judge] shall give notice to that caveator of the existence of the action.

(3) Unless a [F153district judge] [F154or registrar] by order made on summons otherwise directs, the commencement of a probate action shall operate to prevent the sealing of a grant (other than a grant under section 117 of the Act) until application for a grant is made by the person shown to be entitled thereto by the decision of the court in such action.

(4) Upon such application for a grant, any caveat entered by the plaintiff in the action, and any caveat in respect of which notice of the action has been given, shall cease to have effect.

Textual Amendments

Commencement Information

I43Rule 45 in force at 1.1.1988, see rule 1

CitationsE+W

46.—(1) Any citation may issue from the Principal Registry or a district probate registry and shall be settled by a [F155district judge or] registrar before being issued.

(2) Every averment in a citation, and such other information as the [F156district judge or] registrar may require, shall be verified by an affidavit sworn by the person issuing the citation (in these Rules called the “citor”), provided that the [F156district judge or] registrar may in special circumstances accept an affidavit sworn by the citor’s solicitor [F157or probate practitioner].

(3) The citor shall enter a caveat before issuing a citation and, unless a [F158district judge] [F159or registrar] by order made on summons otherwise directs, any caveat in force at the commencement of the citation proceedings shall, unless withdrawn pursuant to paragraph (11) of rule 44, remain in force until application for a grant is made by the person shown to be entitled thereto by the decision of the court in such proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect.

(4) Every citation shall be served personally on the person cited unless the [F160district judge or] registrar, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.

(5) Every will referred to in a citation shall be lodged in a registry before the citation is issued, except where the will is not in the citor’s possession and the [F161district judge or] registrar is satisfied that it is impracticable to require it to be lodged.

(6) A person who has been cited to appear may, within eight days of service of the citation upon him (inclusive of the day of such service), or at any time thereafter if no application has been made by the citor under paragraph (5) of rule 47 or paragraph (2) of rule 48, enter an appearance in the registry from which the citation issued by filing Form 5 and shall forthwith thereafter serve on the citor a copy of Form 5 sealed with the seal of the registry.

Textual Amendments

Commencement Information

I44Rule 46 in force at 1.1.1988, see rule 1

Citation to accept or refuse or to take a grantE+W

47.—(1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.

(2) Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the will or the survivor of them or of the executors of the last survivor of deceased executors who have proved.

(3) A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of six months from the death of the deceased, provided that no citation to take a grant shall issue while proceedings as to the validity of the will are pending.

(4) A person cited who is willing to accept or take a grant may, after entering an appearance, apply ex parte by affidavit to a [F162district judge or] registrar for an order for a grant to himself.

(5) If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may—

(a)in the case of a citation under paragraph (1) of this rule, apply to a [F163district judge or] registrar for an order for a grant to himself;

(b)in the case of a citation under paragraph (2) of this rule, apply to a [F163district judge or] registrar for an order that a note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights in respect of the executorship have wholly ceased; or

(c)in the case of a citation under paragraph (3) of this rule, apply to a [F163district judge or]registrar by summons (which shall be served on the person cited) for an order requiring such person to take a grant within a specified time or for a grant to himself or to some other person specified in the summons.

(6) An application under the last foregoing paragraph shall be supported by an affidavit showing that the citation was duly served.

(7) If the person cited has entered an appearance but has not applied for a grant under paragraph (4) of this rule, or has failed to prosecute his application with reasonable diligence, the citor may—

(a)in the case of a citation under paragraph (1) of this rule, apply by summons to a [F164district judge or] registrar for an order for a grant to himself;

(b)in the case of a citation under paragraph (2) of this rule, apply by summons to a [F164district judge or] registrar for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in sub-paragraph (b) of paragraph (5) of this rule; or

(c)in the case of a citation under paragraph (3) of this rule, apply by summons to a [F164district judge or] registrar for an order requiring the person cited to take a grant within a specified time or for a grant to himself or to some other person specified in the summons;

and the summons shall be served on the person cited.

Textual Amendments

Commencement Information

I45Rule 47 in force at 1.1.1988, see rule 1

Citation to propound a willE+W

48.—(1) A citation to propound a will shall be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.

(2) If the time limited for appearance has expired, the citor may—

(a)in the case where no person has entered an appearance, apply to a [F165district judge or] registrar for an order for a grant as if the will were invalid and such application shall be supported by an affidavit showing that the citation was duly served; or

(b)in the case where no person who has entered an appearance proceeds with reasonable diligence to propound the will, apply to a [F165district judge or] registrar by summons, which shall be served on every person cited who has entered an appearance, for such an order as is mentioned in paragraph (a) above.

Textual Amendments

Commencement Information

I46Rule 48 in force at 1.1.1988, see rule 1

Address for serviceE+W

49.  All caveats, citations, warnings and appearances shall contain an address for service in England and Wales.

Commencement Information

I47Rule 49 in force at 1.1.1988, see rule 1

Application for order to attend for examination or for subpoena to bring in a willE+W

50.—(1) An application under section 122 of the Act for an order requiring a person to attend for examination may, unless a probate action has been commenced, be made to a [F166district judge or] registrar by summons which shall be served on every such person as aforesaid.

(2) An application under section 123 of the Act for the issue by a [F167district judge or] registrar of a subpoena to bring in a will shall be supported by an affidavit setting out the grounds of the application, and if any person served with the subpoena denies that the will is in his possession or control he may file an affidavit to that effect in the registry from which the subpoena issued.

Textual Amendments

Commencement Information

I48Rule 50 in force at 1.1.1988, see rule 1

Grants to part of an estate under section 113 of the ActE+W

51.  An application for an order for a grant under section 113 of the Act to part of an estate may be made to a [F168district judge or] registrar, and shall be supported by an affidavit setting out the grounds of the application, and

(a)stating whether the estate of the deceased is known to be insolvent; and

(b)showing how any person entitled to a grant in respect of the whole estate in priority to the applicant has been cleared off.

Textual Amendments

Commencement Information

I49Rule 51 in force at 1.1.1988, see rule 1

Grants of administration under discretionary powers of court, and grants ad colligenda bonaE+W

52.  An application for an order for—

(a)a grant of administration under section 116 of the Act; or

(b)a grant of administration ad colligenda bona,

may be made to a [F169district judge or] registrar and shall be supported by an affidavit setting out the grounds of the application.

Textual Amendments

Commencement Information

I50Rule 52 in force at 1.1.1988, see rule 1

Applications for leave to swear to deathE+W

53.  An application for leave to swear to the death of a person in whose estate a grant is sought may be made to a [F170district judge or] registrar, and shall be supported by an affidavit setting out the grounds of the application and containing particulars of any policies of insurance effected on the life of the presumed deceased together with such further evidence as the [F170district judge or] registrar may require.

Textual Amendments

Commencement Information

I51Rule 53 in force at 1.1.1988, see rule 1

Grants in respect of nuncupative wills and copies of willsE+W

54.—(1) Subject to paragraph (2) below, an application for an order admitting to proof a nuncupative will, or a will contained in a copy or reconstruction thereof where the original is not available, shall be made to a [F171district judge or] registrar.

(2) In any case where a will is not available owing to its being retained in the custody of a foreign court or official, a duly authenticated copy of the will may be admitted to proof without the order referred to in paragraph (1) above.

(3) An application under paragraph (1) above shall be supported by an affidavit setting out the grounds of the application, and by such evidence on affidavit as the applicant can adduce as to—

(a)the will’s existence after the death of the testator or, where there is no such evidence, the facts on which the applicant relies to rebut the presumption that the will has been revoked by destruction;

(b)in respect of a nuncupative will, the contents of that will; and

(c)in respect of a reconstruction of a will, the accuracy of that reconstruction.

(4) The [F171district judge or] registrar may require additional evidence in the circumstances of a particular case as to due execution of the will or as to the accuracy of the copy will, and may direct that notice be given to persons who would be prejudiced by the application.

Textual Amendments

Commencement Information

I52Rule 54 in force at 1.1.1988, see rule 1

Application for rectification of a willE+W

55.—(1) An application for an order that a will be rectified by virtue of section 20(1) of the Administration of Justice Act 1982(12) may be made to a [F172district judge or] registrar, unless a probate action has been commenced.

(2) The application shall be supported by an affidavit, setting out the grounds of the application, together with such evidence as can be adduced as to the testator’s intentions and as to whichever of the following matters as are in issue:—

(a)in what respects the testator’s intentions were not understood; or

(b)the nature of any alleged clerical error.

(3) Unless otherwise directed, notice of the application shall be given to every person having an interest under the will whose interest might be prejudiced [F173, or such other person who might be prejudiced,] by the rectification applied for and any comments in writing by any such person shall be exhibited to the affidavit in support of the application.

(4) If the [F172district judge or] registrar is satisfied that, subject to any direction to the contrary, notice has been given to every person mentioned in paragraph (3) above, and that the application is unopposed, he may order that the will be rectified accordingly.

Textual Amendments

Commencement Information

I53Rule 55 in force at 1.1.1988, see rule 1

Notice of election by surviving spouse [F174or civil partner] to redeem life interestE+W

56.—(1) Where a surviving spouse [F175or civil partner] who is the sole or sole surviving personal representative of the deceased is entitled to a life interest in part of the residuary estate and elects under section 47A of the Administration of Estates Act 1925(13) to have the life interest redeemed, he may give written notice of the election to the [F176senior district judge] in pursuance of subsection (7) of that section by filing a notice in Form 6 in the Principal Registry or in the district probate registry from which the grant issued.

(2) Where the grant issued from a district probate registry, the notice shall be filed in duplicate.

(3) A notice filed under this rule shall be noted on the grant and the record and shall be open to inspection.

Textual Amendments

Commencement Information

I54Rule 56 in force at 1.1.1988, see rule 1

[F177Index of grant applicationsE+W

57.—(1) The senior district judge shall maintain an index of every pending application for a grant made in any registry or sub-registry.

(2) Every registry or sub-registry in which an application is made shall cause the index to be searched and shall record the result of the search.]

Textual Amendments

Inspection of copies of original wills and other documentsE+W

58.  An original will or other document referred to in section 124 of the Act shall not be open to inspection if, in the opinion of a [F178district judge or] registrar, such inspection would be undesirable or otherwise inappropriate.

Textual Amendments

Commencement Information

I55Rule 58 in force at 1.1.1988, see rule 1

Issue of copies of original wills and other documentsE+W

59.  Where copies are required of original wills or other documents deposited under section 124 of the Act, such copies may be facsimile copies sealed with the seal of the court and issued either as office copies or certified under the hand of a [F179district judge or] registrar to be true copies.

Textual Amendments

Commencement Information

I56Rule 59 in force at 1.1.1988, see rule 1

[F180CostsE+W

60.—(1) Order 62 of the Rules of the Supreme Court 1965 shall not apply to costs in non-contentious probate matters, and Parts 43, 44 (except rules 44.9 to 44.12), 47 and 48 of the Civil Procedure Rules 1998 (“the 1998 Rules”) shall apply to costs in those matters, with the modifications contained in paragraphs (3) to (7) of this rule.

(2) Where detailed assessment of a bill of costs is ordered, it shall be referred—

(a)where the order was made by a district judge, to a district judge, a costs judge or an authorised court officer within rule 43.2(1)(d)(iii) or (iv) of the 1998 Rules;

(b)where the order was made by a registrar, to that registrar or, where this is not possible, in accordance with sub-paragraph (a) above.

(3) Every reference in Parts 43, 44, 47 and 48 of the 1998 Rules to a district judge shall be construed as referring only to a district judge of the Principal Registry.

(4) The definition of “costs officer” in rule 43.2(1)(c) of the 1998 Rules shall have effect as if it included a paragraph reading—

“(iv)a district probate registrar.”

(5) The definition of “authorised court officer” in rule 43.2(1)(d) of the 1998 Rules shall have effect as if paragraphs (i) and (ii) were omitted.

(6) Rule 44.3(2) of the 1998 Rules (costs follow the event) shall not apply.

(7) Rule 47.4(2) of the 1998 Rules shall apply as if after the words “Supreme Court Costs Office” there were inserted “, the Principal Registry of the Family Division or such district probate registry as the court may specify”.

(8) Except in the case of an appeal against a decision of an authorised court officer (to which rules 47.20 to 47.23 of the 1998 Rules apply), an appeal against a decision in assessment proceedings relating to costs in non-contentious probate matters shall be dealt with in accordance with the following paragraphs of this rule.

(9) An appeal within paragraph (8) above against a decision made by a district judge, a costs judge (as defined by rule 43.2(1)(b) of the 1998 Rules) or a registrar, shall lie to a judge of the High Court.

(10) Part 52 of the 1998 Rules applies to every appeal within paragraph (8) above, and any reference in Part 52 to a judge or a district judge shall be taken to include a district judge of the Principal Registry of the Family Division.

(11) The 1998 Rules shall apply to an appeal to which Part 52 or rules 47.20 to 47.23 of those Rules apply in accordance with paragraph (8) above in the same way as they apply to any other appeal within Part 52 or rules 47.20 to 47.23 of those Rules as the case may be; accordingly the Rules of the Supreme Court 1965 and the County Court Rules 1981 shall not apply to any such appeal.]

Textual Amendments

Power to require applications to be made by summonsE+W

61.—(1) [F181Subject to rule 7(2),] a [F182district judge or] registrar may require any application to be made by summons to a registrar in chambers or a judge in chambers or open court.

(2) An application for an inventory and account shall be made by summons to a [F182district judge or] registrar.

(3) A summons for hearing by a [F182district judge or] registrar shall be issued out of the registry in which it is to be heard.

(4) A summons to be heard by a judge shall be issued out of the Principal Registry.

[F183(5) Where an application is required under this rule to be made by summons, a district judge or registrar may—

(a)give directions (which may be given before listing the application);

(b)hold a hearing of the application, and receive evidence, by telephone or by using any other method of direct oral communication.

(6) A direction under paragraph (5) may be made subject to conditions, and may specify the consequences of failure to comply with the direction or a condition.]

Textual Amendments

Commencement Information

I57Rule 61 in force at 1.1.1988, see rule 1

Transfer of applicationsE+W

62.  A registrar to whom any application is made under these Rules may order the transfer of the application to another [F184district judge or] registrar having jurisdiction.

Textual Amendments

Commencement Information

I58Rule 62 in force at 1.1.1988, see rule 1

[F185Exercise of a registrar’s jurisdiction by another registrarE+W

62A.  A registrar may hear and dispose of an application under these Rules on behalf of any other registrar by whom the application would otherwise have been heard, if that other registrar so requests or an application in that behalf is made by a party making an application under these Rules; and where the circumstances require it, the registrar shall, without the need for any such request or application, hear and dispose of the application.]

Textual Amendments

Power to make orders for costsE+W

63.  On any application dealt with by him on summons, the F186... registrar shall have full power to determine by whom and to what extent the costs are to be paid.

Textual Amendments

Commencement Information

I59Rule 63 in force at 1.1.1988, see rule 1

Exercise of powers of judge during Long VacationE+W

64.  All powers exercisable under these Rules by a judge in chambers may be exercised during the Long Vacation by a [F187district judge].

Textual Amendments

Commencement Information

I60Rule 64 in force at 1.1.1988, see rule 1

Appeals from [F188district judges or] registrarsE+W

65.—(1) An appeal against a decision or requirement of a [F189district judge or] registrar shall be made by summons to a judge.

(2) If, in the case of an appeal under the last foregoing paragraph, any person besides the appellant appeared or was represented before the registrar from whose decision or requirement the appeal is brought, the summons shall be issued within seven days thereof for hearing on the first available day and shall be served on every such person as aforesaid.

[F190(3) This rule does not apply to an appeal against a decision in proceedings for the assessment of costs.]

Textual Amendments

Commencement Information

I61Rule 65 in force at 1.1.1988, see rule 1

Service of summonsE+W

66.—(1) A judge or [F191district judge] or, where the application is to be made to a district probate registrar, that registrar, may direct that a summons for the service of which no other provision is made by these Rules shall be served on such person or persons as the [F192judge, district judge or registrar] [F193may direct].

(2) Where by these Rules or by any direction given under the last foregoing paragraph a summons is required to be served on any person, it shall be served not less than two clear days before the day appointed for the hearing, unless a judge or [F194district judge or] registrar at or before the hearing dispenses with service on such terms, if any, as he may think fit.

Textual Amendments

Commencement Information

I62Rule 66 in force at 1.1.1988, see rule 1

Notices, etc.E+W

67.  Unless a [F195district judge or] registrar otherwise directs or these Rules otherwise provide, any notice or other document required to be given to or served on any person may be given or served in the manner prescribed by Order 65 Rule 5 of the Rules of the Supreme Court 1965(14)

Textual Amendments

Commencement Information

I63Rule 67 in force at 1.1.1988, see rule 1

Application to pending proceedingsE+W

68.  Subject in any particular case to any direction given by a judge or [F196district judge or] registrar, these Rules shall apply to any proceedings which are pending on the date on which they come into force as well as to any proceedings commenced on or after that date.

Textual Amendments

Commencement Information

I64Rule 68 in force at 1.1.1988, see rule 1

Revocation of previous rulesE+W

69.—(1) Subject to paragraph (2) below, the rules set out in the Second Schedule are hereby revoked.

(2) The rules set out in the Second Schedule shall continue to apply to such extent as may be necessary for giving effect to a direction under rule 68.

Commencement Information

I65Rule 69 in force at 1.1.1988, see rule 1

John Arnold, P.

Dated 13th November 1987

I concur,

Mackay of Clashfern, C.

Dated 24th November 1987

Rule 2(2)

FIRST SCHEDULEE+WFORMS

Commencement Information

I66Sch. 1 in force at 1.1.1988, see rule 1

Rule 42

FORM 1E+Wcertificate of delivery of inland revenue affidavit

Rule 43(1)

F197FORM 2E+Wstanding search

Textual Amendments

F197Sch. 1 Form 2 the words “The Principal [or ... ... ... ...District Probate] Registry” substituted for “The Principal Registry” (14.10.1991) by The Non-Contentious Probate (Amendment) Rules 1991 (S.I. 1991/1876), rules 1(1), 11(3)

Rule 44(2)

F198F199FORM 3E+Wcaveat

Textual Amendments

F198Sch. 1 Form 3 the words “or probate practitioner” inserted after the first occurrence of the word “solicitor” (14.9.1998) by The Non-Contentious Probate (Amendment) Rules 1998 (S.I. 1998/1903), rules 1(1), 16(a)

F199Sch. 1 Form 3 the words “/probate practitioner” inserted after the second occurrence of the word “solicitor” (14.9.1998) by The Non-Contentious Probate (Amendment) Rules 1998 (S.I. 1998/1903), rules 1(1), 16(b)

Rule 44(5)

F200F201F202F203FORM 4E+Wwarning to caveator

Textual Amendments

F200Sch. 1 Form 4 the words “directions by a district judge of the Principal Registry or a registrar of” substituted for “directions by a registrar of the Principal Registry or” (14.10.1991) by The Non-Contentious Probate (Amendment) Rules 1991 (S.I. 1991/1876), rules 1(1), 7(8)

F201Sch. 1 Form 4 the words “or probate practitioner” inserted after both occurrences of the word “solicitor” (14.9.1998) by The Non-Contentious Probate (Amendment) Rules 1998 (S.I. 1998/1903), rules 1(1), 17(a)

F202Sch. 1 Form 4 the words “[The nominated registry as defined by rule 44(15)]” substituted for “[The Registry in which the caveat index is maintained]” (14.9.1998) by The Non-Contentious Probate (Amendment) Rules 1998 (S.I. 1998/1903), rules 1(1), 17(b)

F203Sch. 1 Form 4 the words “[name and address of the nominated registry]” substituted for “[name and address of the registry in which the caveat index is maintained]” (14.9.1998) by The Non-Contentious Probate (Amendment) Rules 1998 (S.I. 1998/1903), rules 1(1), 17(c)

Rules 44(10), 46(6)

F204FORM 5E+Wappearance to warning or citation

Textual Amendments

F204Sch. 1 Form 5 the words “/probate practitioner” inserted after the word “Solicitor” (14.9.1998) by The Non-Contentious Probate (Amendment) Rules 1998 (S.I. 1998/1903), rules 1(1), 18

Rule 56

F205F206FORM 6E+Wnotice of election to redeem life interest

Textual Amendments

F205Sch. 1 Form 6 the words “senior district judge” substituted for “Senior Registrar” (14.10.1991) by The Non-Contentious Probate (Amendment) Rules 1991 (S.I. 1991/1876), rules 1(1), 7(4)

F206Sch. 1 Form 6 the words “/civil partner” inserted after the words “wife/husband” (5.12.2005) by The Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005 (S.I. 2005/2114), arts. 1, 2(6), Sch. 6 para. 2(5)

Rule 69

SECOND SCHEDULEE+WREVOCATIONS

Commencement Information

I67Sch. 2 in force at 1.1.1988, see rule 1

Rules revokedReferences
The Non-Contentious Probate Rules 1954S.I.1954/796
The Non-Contentious Probate (Amendment) Rules 1961S.I.1961/72
The Non-Contentious Probate (Amendment) Rules 1962S.I.1962/2653
The Non-Contentious Probate (Amendment) Rules 1967S.I.1967/748
The Non-Contentious Probate (Amendment) Rules 1968S.I.1968/1675
The Non-Contentious Probate (Amendment) Rules 1969S.I.1969/1689
The Non-Contentious Probate (Amendment) Rules 1971S.I.1971/1977
The Non-Contentious Probate (Amendment) Rules 1974S.I.1974/597
The Non-Contentious Probate (Amendment) Rules 1976S.I.1976/1362
The Non-Contentious Probate (Amendment) Rules 1982S.I.1982/446
The Non-Contentious Probate (Amendment) Rules 1983S.I.1983/623
The Non-Contentious Probate (Amendment) Rules 1985S.I.1985/1232

Explanatory Note

(This note is not part of the Rules)

This instrument brings into force new rules relating to non-contentious probate matters. They replace the existing non-contentious probate rules made in 1954 (as amended) and reflect changes in law and practice since that time.

The changes include a provision to ensure that executors not joining in an application for a grant of probate are nevertheless notified of the application: rule 27. There is also a provision for the grant of administration to a person acting as attorney under a registered enduring power of attorney: rule 35. Provision is no longer made to require a guarantee as a condition of granting letters of administration.

(14)

S.I. 1965/1776.