IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
PRACTICE GUIDANCE NOTE (PROBATE)
CIVIL PARTNERSHIP ACT 2004
1. Attention is drawn to the changes to primary legislation contained in Schedule 14 to the above Act (“the Act”) assimilating rights of surviving civil partners to those of surviving spouses including the addition of Articles 13A and 13B (effects of civil partnerships and their dissolution or annulment on wills) to the Wills and Administration Proceedings (Northern Ireland) Order 1994 (“the 1994 Order”) and amendments to Part II (distribution on intestacy) of the Administration of Estates Act (Northern Ireland) 1955, at sections 6A to 11.
Oaths / Revocation of Wills
2. Given the provisions about revocation of wills in Article 13A, the common averment in the Oath that the testator “did not intermarry with any person” after the making of the will must, where the testator died on or after 5
December 2005, be superseded by an averment that the testator did not
intermarry or form a civil partnership with any person after making the
will. (This will not of course be appropriate where the testator did so marry
or form a civil partnership but for reasons specified in Article 12
or 13A of the 1994 Order the will or part of it was not revoked.)
Entitlement to Grants on Intestacy
3. Civil partners who survive intestates will now be treated as entitled to grants
as they are to distributive shares, ie in exactly the same priority as surviving
spouses and as though Order 97 rule 20(1)(i) of the Rules of the Supreme
Court (Northern Ireland) 1980 (and rules 20(2) and 24) were amended by
inserting after “The surviving spouse” the words “or civil partner”.
Oaths for Administrators / Intestate Estates
4. Every oath to apply for a grant of administration to an intestate estate, and
every affidavit grounding an application (eg, for appointment of a guardian)
to which a civil partnership would (if it subsisted) be material, should
clarify in express terms or by necessary implication whether the Deceased
was survived by a civil partner.
5. For example, where the Deceased (a male) did not form a civil partnership: (i) an averment that the Deceased died on a date before 5 December 2005 (ie before the relevant commencement date) would be adequate; and (ii) an averment that the Deceased’s lawful widow survived him would also be adequate; but (iii) an averment that the Deceased died a bachelor without issue would not provide adequate clarification; and (iv) an averment that the Deceased died a widower would be inadequate.
6. In the examples at 5(iii) and (iv) the possibility of a relevant civil partnership may be cleared off by words to the effect that the Deceased did not form a civil partnership, or that he did not leave a civil partner him surviving, or simply that the Act does not apply or is not relevant.
References to Surviving Civil Partners
7. Where it is relevant to any oath or affidavit, whether in a testate or intestate estate, the averment should refer to a civil partner surviving a Deceased as
his or her registered civil partner.
Dated this 5th day of January 2007