IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

PRACTICE GUIDANCE NOTE (PROBATE)

Points in Practice (1st Re-issue)

 

APPLICATIONS FOR GRANTS OF PROBATE OR ADMINISTRATION

       1. The attention of practitioners and applicants in person is drawn to the requirements contained in the Second Schedule the contents of which are listed in Part A of the First Schedule.  Though they are far from exhaustive, adequate attention to these requirements and to the Practice Guidance Notes (“PGNs”) listed in Part B of the First Schedule (and numbered as shown therein) should reduce significantly the number of errors in applications for grants of representation.

 

INHERITANCE TAX QUERIES

  1. As stated in PGN 2 paragraph 3, queries about IHT liability and forms must

not be directed to the Probate Office.  The HMRC Inheritance Tax Office, (“IHTO”, formerly known as the Capital Taxes Office) website is www.hmrc.gov.uk/cto, its helpline 0845 3020900.

 

PREPARATION OF OATHS/AFFIDAVITS

  1. Oaths and other affidavits and their exhibits (save wills and codicils which must NOT be certified as an exhibit pursuant to Order 41 rule 11(2) and (3), but signed or initialled as per paragraph 20(1) of the Second Schedule) must be prepared in accordance with the Lord Chief Justice’s Practice Direction 5/2005: Preparation of Affidavits and Exhibits.

 

GENERAL

4.   Generally, errors in applications can be minimised by compliance with the     relevant legislation including Order 97 of the Rules of the Supreme Court (Northern Ireland) 1980 (“the Rules”) and by adequate use of the Law Society’s 2004 publication Probate Applications Less Frequently Encountered and established textbooks.  For example: Sheena Grattan’s Succession Law in Northern Ireland provides guidance on many points of Northern Ireland law and practice; Margaret K M Aiken’s Probate Practice NotesAiken”), although published in 1981, contain precedents and guidance on many points of practice and procedure; Tristram and Coote’s Probate Practice (the current Edition of which is the 30th) contains guidance on points of practice and precedents for the many common and uncommon situations where Northern Ireland law and practice coincide with those of England and Wales. Plainly the guidance and precedents obtainable from such texts should be adapted as appropriate having regard to the current requirements of the Rules and any relevant Practice Direction or Practice Guidance Note.

 

5.   This Practice Guidance Note replaces that issued on 12 February 2007 (as amended by that dated 19 July 2007).

 

Dated   8 October  2007

 

Master Ellison

 

 

FIRST SCHEDULE

PART A

 

Contents of Second Schedule

                                                                                                            Paragraph

OATH DETAILS

Names …………………………………………………………                   1

Addresses …………………………………………………….                     2

Occupations ………………………………………………….                      3

Entitlement to Grant…………………………………………                      4

Entitlement under Another Grant …………………………                        5

Relationships …………………………………………………                    6

Cases with a Judge’s or Master’s Order ………………………                7

Renunciations ………………………………………………..                     8

Powers of Attorney ……………………………………………                   9

Trust and other Corporations ……………………………….                      10

Decree Absolute ………………………………………………                   11

Age …………………………………………………………….                   12

Date and Place of Death ………………………………………                  13

Domicile ……………………………………………………….                   14

Filing Clause ………………………………………………….                    15

Gross and Net Values of the Estate………………………….                    16

Jurat……………………………………………………………                   17

Amendments to a Sworn Document …………………………                     18

 

OTHER DOCUMENTS

Notice of Application ………………………………………….                   19

Wills …………………………………………………………….                  20

Probate Engrossment ………………………………………….                  21

Inheritance Tax Account/Forms.………………………………                   22

Guarantee Bond/Sureties Guarantee …………………………                  23

Fees……………………………………………………………....                24

           

 

PART B

 

PRACTICE GUIDANCE NOTES                                                    Date

 

1.         Engrossments of Wills and Codicils ………………    13 September 2006

 

2.         Oaths for Grants/Inheritance Tax Accounts………    12 December 2006

 

3.         Unique Solicitor’s Reference…………………………    19 December 2006

 

4.         Civil Partnership Act 2004……………………………         5 January 2007
SECOND SCHEDULE

OATH DETAILS

1.      Names

(1)        The full names of all parties should be used in the Oath.

 

(2)        Any discrepancies between names in other documents (e.g. a maiden name used in the Will) should be clarified in brackets after the name in the Oath.

 

(3)        Any discrepancies between names and signatures or initials (e.g. William signing as Bill) should be clarified in brackets after the name in the Oath.

 

2.      Addresses

(1)        The full current postal addresses of all parties should be used in the Oath.  These should include the postcodes, if known, and if the address is outside Northern Ireland, the country.

 

(2)        Any discrepancies between addresses in other documents (e.g. a former address used in the Will) should be clarified in brackets in the Oath.

 

3.      Occupations

(1)        The occupation (or former occupation if the person has retired or is currently unemployed) of the Deceased and the deponent should be used in the Oath.

 

 (2)       If the Deceased did not at death or the deponent does not have an occupation, his or her marital status (or, if appropriate, status as a registered civil partner) or other description will suffice.

 

4.      Entitlement to Grant

(1)        In cases of intestacy, the entitlement of the applicant to apply must be

             made clear. (See eg Aiken pages 64 to 67 and PGN 4.)

           

(2)        Where there is a Will, the applicant’s entitlement to apply must be clarified and, if there are any other non-proving Executors named in the Will the Oath should state their names and  either :-

 

(a)        that power is reserved to the other executor (or executors) so named;  or

(b)         that the other executor has renounced or predeceased the testator

                        or survived the testator and then died, stating the date of death.

 

(3)        Generally, if there is any person who appears entitled to apply in priority to

 the applicant, that person’s full name and the reason why he or she is not applying  must be stated.

 

 

5.      Entitlement Under Another Grant

If the entitlement of an applicant is as the legal personal representative of another party, concise details of the relevant Grant should be recited in the Oath and either the original Grant or a sealed and certified copy Grant should accompany the application.

 

6.      Relationships

In cases with a Will, if the applicant is a relative (by blood or marriage) or a surviving registered civil partner of the deceased, this should be stated in the Oath.

7.      Cases with Judge’s or Master’s Order

Where a relevant Master’s or Judge’s Order has been made, reference should be made to this in the Oath, including the date the Order was made, and a copy of the Order should accompany the application.

8.      Renunciations

If a person entitled to make an application is renouncing, the appropriate form should

be lodged with the application.  The forms can be found on page 70 of Aiken.  (See

also paragraph 4(2) above.)  The original renunciation must be exhibited to the

Oath.

9.      Power of Attorney

(1)        If the person entitled to apply has executed a power of attorney in favour of the actual applicant, the appropriate form should be lodged with the application.  Specimen forms of powers of attorney for the specific purposes of applications for grants, and of averments for Oaths for donees of such powers, can be found on pages 68 and 69 of Aiken.

 

 (2)       Where the person entitled to the grant is incapable but an enduring power of attorney executed by that person is relied on (i) the original or Office certified copy power should be lodged, (ii) the Oath should confirm that the Office of Care and Protection has not authorised anyone else to apply, and (iii) the Oath or a Solicitor’s letter should confirm that the Office of Care and Protection has been given notice of the application (normally at least 14 days in advance).

 

(3)        Where an executor entitled to a grant resides outside Northern Ireland, notice of an application pursuant to Order 97 rule 26(1) for a grant to his attorney must be given to the other executors (if any), unless such notice is dispensed with by the Master.   A request by solicitor’s letter to dispense with such notice will be considered but the request should normally be made before the swearing of the Oath as the latter should clarify whether notice has been served or dispensed with.

 

(4)       Attention is drawn to the requirement in Order 97 rule 26(2) that the Master must be satisfied by affidavit of the desirability of making a grant to the attorney of a person entitled to a grant and resident in Northern Ireland.

10.    Trust and other Corporations

(1)        If the application is being made pursuant to a resolution authorising an officer of a trust corporation to apply, either an original sealed resolution or a sealed and certified copy resolution should be lodged with the application and concise details of the resolution should be recited in the Oath; all consents required by Order 97 rule 30 of the Rules should be lodged and the Oath should state that it is a trust corporation and that its appointee has power to accept the grant;

 

(2)        If the applicant is a corporation other than a trust corporation, the Oath shall state that fact and the application shall be accompanied by a sealed copy of the relevant resolution or power of attorney appointing its nominee. Concise details of the resolution or power should also be stated in the Oatah..

11.    Decree Absolute

In cases of intestacy where the deceased person was divorced, a photocopy of the Northern Ireland Decree Absolute (or a sealed and certified copy of the equivalent document if the divorce was granted outside the jurisdiction) should be lodged and reference should be made in the Oath to the details of the Decree Absolute (or equivalent document if the divorce was granted outside the jurisdiction). 

12.    Age

The age of the Deceased should be completed in the Oath.

13.    Place and date of death

The place and date of death should be completed in the Oath.

14.    Domicile

The domicile of the deceased should be completed in the Oath. (Should the domicile not be Northern Ireland, a booklet is available from the Law Society, which includes notes on making an application with a foreign domicile.)

15.    Filing Clause

Where the application is to be lodged by solicitors a filing clause must be completed at the foot of the Oath.  The name of the solicitor’s firm, the unique solicitor’s reference in accordance with PGN 3, and the full address of the lodging office should be completed.

16.    Gross and net values of the estate

For an application where the date of death is after 6 April 2004 a tax form must be completed in all cases and PGN 2 must be complied with.  The following table shows the excepted estate limits down to the date of this Note.

 

Table 1

Date of Death

Excepted estate limits

Prior to 1 April 1981

A Tax Account is always required

On or after 1 April 1981

£25,000

     Ditto  1 April 1983

£40,000

     Ditto  1 April 1987

£70,000

     Ditto  1 April 1989

£100,000

     Ditto  1 April 1990

£115,000

     Ditto  1 April 1991

£125,000

     Ditto  6 April 1995

£145,000

     Ditto  6 April 1996

£180,000

     Ditto  6 April 1998

£200,000

     Ditto  6 April 2000

£210,000

     Ditto  6 April 2002

£220,000

     Ditto  6 April 2003

£240,000

     Ditto  6 April 2004

£263,000

     Ditto  6 April 2005

£275,000

     Ditto  6 April 2006

£285,000

     Ditto 6 April 2007

£300,000

 

17.    Jurat

(1)        The jurat in the Oath should be completed appropriately giving the place of swearing, date of swearing, name of applicant, entitlement of commissioner/solicitor to swear the Oath and jurisdiction in which the commissioner/solicitor is entitled to swear the Oath. 

 

(2)        Please note that a jurat in an Oath will be treated as valid for six months only and after this period a letter from a solicitor will be required to confirm that no details in the Oath have changed since it was sworn.  If any details have changed since it was sworn, then a fresh Oath or a supplemental Oath should be lodged.

18.    Amendments to a sworn document

 (1)       If the original Oath has to be re-sworn, a fresh jurat is required either below the existing jurat or on the back of the Oath document, providing the details of the re-swearing.  The standard wording for a jurat should be used, with ‘Re-sworn’ replacing ‘Sworn’. 

 

(2)        If a fresh Oath is required, the original Will (if any) must be collected from the Probate Office by the lodging individual or solicitors and re-signed or initialled on its back by the applicant(s) and the commissioner/solicitor swearing the Oath.

 

Documents other than Oaths

19.    Notice of Application

A notice of application should always be lodged.  The particulars contained in the notice should correspond with those stated in the Oath and the IHT form.

 

20.    Wills

(1)        If the deceased died testate, the original Will should be lodged with the application, signed or initialled on the back by the applicant(s) and the commissioner/solicitor who swore the Oath.

 

(2)        No paperclips, staples or similar should be attached to the original Will, otherwise a letter or affidavit confirming the reason for the attachment and that nothing of a testamentary nature was attached to the Will will be required.

 

(3)        If there have been any amendments to bequests, figures, names or dates within the Will (unless either these have been initialled by the testator/testatrix and attesting witnesses to the Will, or the amendment has been recorded adequately in the attestation clause), an affidavit from an attesting witness to the Will is required, confirming (if appropriate) that the amendments were made prior to the execution of the Will. 

 

(4)        Similarly, if correction fluid has been used on the original Will, an affidavit of an Attesting Witness to the Will is required, stating that the relevant amendment was made prior to the execution of the Will.

 

(5)        If the attestation clause in the original Will is incomplete, an Affidavit of Attesting Witness is required to confirm the Will was executed correctly.  (An example of such an affidavit can be found on page 57 of Aiken.

 

(6)        If there are any issues regarding the signature of the testator/testatrix, an Affidavit of Handwriting will be required.  (An example Affidavit can be found on page 60 of Aiken.)

21.    Probate Engrossment

A probate engrossment will be required in the circumstances set out in PGN1.  This engrossment should be an exact typed or printed copy of the original will and should be printed on either probate engrossment paper or yellow deed paper. The probate engrossment should be headed as such and must be prepared and certified as directed in paragraph 4 of the PGN.

22.    Inheritance Tax Account/Forms

(1)        PGN 2 must be complied with.

 

(2)        If the date of death is on or after 6 April 2004 and a D18 tax account is required to be delivered, the D18 must be stamped by the IHTO prior to it being lodged with the application to the Probate Office.

 

(3)        For cases where the place of domicile of the deceased is not Northern Ireland and a D18 tax account requires to be delivered, the IHTO must have accepted the domicile by marking the D18 prior to it being lodged with the application to the Probate Office.

 

(4)        If another form of tax account or return is required, you should contact the IHTO not the Probate office, to ascertain which form should be used.  The correct IHT form must however accompany the application for a grant whether or not there is any liability for IHT.

23.    Guarantee Bond/Sureties Guarantee

(1)        In cases where a Guarantee Bond/Sureties Guarantee is required to be lodged with the application, this should cover the gross value of the estate. 

 

(2)        If a Sureties Guarantee is being lodged, as opposed to a Bond, it should be from two independent parties and should be accompanied by either a justification of sureties or a letter from the solicitor confirming that both of the parties are solvent to the extent of the gross value of the estate.

 

24.       Fees

 

N.B.: REFERENCE MUST ALWAYS BE MADE TO THE FEES ORDER WHICH IS IN FORCE AT THE TIME OF THE APPLICATION

 

The relevant Fees Order can be found on the OPSI website at www.opsi.gov.uk.  An extract from the relevant Fees Order can be found on the NI Court Service website at www.courtsni.gov.uk.

 

Below is a list of Probate Fees prescribed by the Supreme Court (Non-Contentious Probate) Fees (Amendment) Order (NI) 2007 (S.R. 2007 No. 377) which came into operation on 24 September 2007.

 Cheques are made payable to `Northern Ireland Court Service’.

 


 

Description

Fee

 

Application for grant: general

 

1.         On an application for grant (or for resealing a             grant) other than an application to which Fee             No 3 applies:-

 

            (a) if the assessed value does not exceed             £10,000

 

            (b) if the assessed value exceeds £10,000

 

 

 

 

 

 

No Fee

 

 

£200

Personal application fee

2.         In addition to (1) on an application for a grant    by a personal applicant where the value of the        estate exceeds £10,000

 

£50

Special applications

 

3.         On an application for:-

 

            (a) a grant in respect of estate exempt from             inheritance tax by virtue of section 154 of the             Inheritance Tax Act 1984 (exemption for             members of the armed forces, etc.);

 

            (b) a grant limited to trust property;

 

            (c) a duplicate grant;

 

            (d) any second grant or subsequent grant             (including one following a revoked grant) in             respect of the same deceased person, other than             a grant preceded only by a grant limited to trust             property or to a part of the estate

 

 

 

 

£150

 

 

 

 

£150

 

£150

 

£150

Alteration in grants, etc.

 

4.         For making any notation on or amendment to             the grant and record after issue, or impounding or revoking a grant, appointing a guardian or          an administrator in cases of mental or physical        incapacity or releasing an impounded grant            inclusive of filing any document, or preparing       any memorandum under the Inheritance (Provisions for Family and Dependants)             (Northern Ireland) Order 1979.

 

 

£50

Caveats

 

5.         (a) For the entry of a caveat

 

(b) For an extension or a warning to a caveat

 

 

£75

 

£50

Deposit of wills

 

6.         On depositing a will for safe custody in the             Probate and Matrimonial Office or any branch             office

 

 

£30

Searches

 

7.         (a) For a search for a grant on behalf of the             party applying (whether in person or by letter)

 

            (b) Additional payment where the search is             carried out by an officer of the court

 

 

£20

 

 

£10

Inspection

 

8.         On inspection of office records, an original will or any other document, including a copy of a         will

 

 

£30

Copies of documents

 

9.         (a) on a copy document (5 sheets or less) not             otherwise provided for

 

            (b) on any additional copy per page

 

            (c) for an exemplification of a copy signed by             the Master and countersigned by the Lord             Chief Justice, including the fees for preparing             the necessary documents.

 

 

£5.00

 

 

£0.50

 

£75

10.       On an audio recording produced on compact             disc in   respect of any court proceedings-

            For each hour or part thereof

 

£25

Oaths and guarantees

 

11.       Save in a personal application for a grant:-

 

            (a) for administering an oath, for each    deponent to each affidavit

 

            (b) for superintending an attesting execution of    guarantee for each surety

 

 

 

 

£30

 

 

£50

Production of documents, etc

 

12.       On an application for the production of records or documents to be given as evidence:-

 

            On attendance of an officer to produce records             (in addition to the officer’s expenses) for each             hour or part thereof

 

 

 

 

 

£14

 


Settling documents

 

13.       For perusing and settling citations, for each document settled

 

 

£115

Applications to the Master

 

14.       On any application to the Master             not otherwise provided for

 

 

£115

Miscellaneous

 

15.       On sealing a writ of subpoena per

            person

 

 

£30