PART 57 - PROBATE, INHERITANCE AND PRESUMPTION OF DEATH

 

Contents of this Part

Title Number
Scope of this Part and definitions Rule 57.1
I PROBATE CLAIMS  
General Rule 57.2
How to start a probate claim Rule 57.3
Acknowledgment of Service and Defence Rule 57.4
Lodging of testamentary documents and filing of evidence about testamentary documents Rule 57.5
Revocation of existing grant Rule 57.6
Contents of statements of case Rule 57.7
Counterclaim Rule 57.8
Probate counterclaim in other proceedings Rule 57.9
Failure to acknowledge service or to file a defence Rule 57.10
Discontinuance and dismissal Rule 57.11
II RECTIFICATION OF WILLS  
Rectification of Wills Rule 57.12
III SUBSTITUTION AND REMOVAL OF PERSONAL REPRESENTATIVES  
Substitution and Removal of Personal Representatives Rule 57.13
IV CLAIMS UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975  
Scope of this section Rule 57.14
Proceedings in the High Court Rule 57.15
Procedure for claims under section 1 of the Act Rule 57.16
V PROCEEDINGS UNDER THE PRESUMPTION OF DEATH ACT 2013
Scope and interpretation
Rule 57.17
Proceedings to be in the High Court
Rule 57.18
Procedure for claims for a declaration of presumed death or a variation order
Rule 57.19
Giving notice of claim
Rule 57.20
Advertisement of claim
Rule 57.21
Interveners
Rule 57.22
Requirement to provide information
Rule 57.23

Scope of this Part and definitions

57.1

(1) This Part contains rules about –

(a) probate claims;

(b) claims for the rectification of wills;

(c) claims and applications to –

(i) substitute another person for a personal representative; or

(ii) remove a personal representative;

(d) claims under the Inheritance (Provision for Family Dependents) Act 1975(3); and

(e) proceedings under the Presumption of Death Act 20131.

(2) In this Part:

(a) ‘probate claim‘ means a claim for –

(i) the grant of probate of the will, or letters of administration of the estate, of a deceased person;

(ii) the revocation of such a grant; or

(iii) a decree pronouncing for or against the validity of an alleged will;

not being a claim which is non-contentious (or common form) probate business;

(Section 128 of the Supreme Court Act 19812 defines non-contentious (or common form) probate business.)

(b) ‘relevant office’ means –

(i) in the case of High Court proceedings in a Chancery district registry, that registry;

(ii) in the case of any other High Court proceedings, Chancery Chambers at the Royal Courts of Justice, Strand, London, WC2A 2LL; and

(iii) in the case of County Court proceedings, the office of the County Court hearing centre in question;

(c) ‘testamentary document’ means a will, a draft of a will, written instructions for a will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed;

(d) ‘will’ includes a codicil.

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I PROBATE CLAIMS

General

57.2

(1) This Section contains rules about probate claims.

(2) Probate claims in the High Court are assigned to the Chancery Division.

(3) Probate claims in the County Court must only be started by sending the claim to, or making the claim at –

(a) a County Court hearing centre where there is also a Chancery district registry; or

(b) the County Court at Central London.

(4) All probate claims are allocated to the multi-track.

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How to start a probate claim

57.3  A probate claim must be commenced –

(a) in the relevant office; and

(b) using the procedure in Part 7.

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Acknowledgment of Service and Defence

57.4

(1) A defendant who is served with a claim form must file an acknowledgment of service.

(2) Subject to paragraph (3), the period for filing an acknowledgment of service is –

(a) if the defendant is served with a claim form which states that particulars of claim are to follow, 28 days after service of the particulars of claim; and

(b) in any other case, 28 days after service of the claim form.

(3) If the claim form is served out of the jurisdiction under rule 6.32 or 6.33, the period for filing an acknowledgment of service is 14 days longer than the relevant period specified in rule 6.35 or Practice Direction 6B.

(4) Rule 15(4) (which provides the period for filing a defence) applies as if the words ‘under Part 10’ were omitted from rule 15.4(1)(b).

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Lodging of testamentary documents and filing of evidence about testamentary documents

57.5

(1) Any testamentary document of the deceased person in the possession or control of any party must be lodged with the court.

(2) Unless the court directs otherwise, the testamentary documents must be lodged in the relevant office –

(a) by the claimant when the claim form is issued; and

(b) by a defendant when he acknowledges service.

(3) The claimant and every defendant who acknowledges service of the claim form must in written evidence –

(a) describe any testamentary document of the deceased of which he has any knowledge or, if he does not know of any such testamentary document, state that fact, and

(b) if any testamentary document of which he has knowledge is not in his possession or under his control, give the name and address of the person in whose possession or under whose control it is or, if he does not know the name or address of that person, state that fact.

(A specimen form for the written evidence about testamentary documents is annexed to Practice Direction 57.)

(4) Unless the court directs otherwise, the written evidence required by paragraph (3) must be filed in the relevant office –

(a) by the claimant, when the claim form is issued; and

(b) by a defendant when he acknowledges service.

(5) Except with the permission of the court, a party shall not be allowed to inspect the testamentary documents or written evidence lodged or filed by any other party until he himself has lodged his testamentary documents and filed his evidence.

(6) The provisions of paragraphs (2) and (4) may be modified by a practice direction under this Part.

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Revocation of existing grant

57.6

(1) In a probate claim which seeks the revocation of a grant of probate or letters of administration every person who is entitled, or claims to be entitled, to administer the estate under that grant must be made a party to the claim.

(2) If the claimant is the person to whom the grant was made, he must lodge the probate or letters of administration in the relevant office when the claim form is issued.

(3) If a defendant has the probate or letters of administration under his control, he must lodge it in the relevant office when he acknowledges service.

(4) Paragraphs (2) and (3) do not apply where the grant has already been lodged at the court, which in this paragraph includes the Principal Registry of the Family Division or a district probate registry.

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Contents of statements of case

57.7

(1) The claim form must contain a statement of the nature of the interest of the claimant and of each defendant in the estate.

(2) If a party disputes another party's interest in the estate he must state this in his statement of case and set out his reasons.

(3) Any party who contends that at the time when a will was executed the testator did not know of and approve its contents must give particulars of the facts and matters relied on.

(4) Any party who wishes to contend that –

(a) a will was not duly executed;

(b) at the time of the execution of a will the testator lacked testamentary capacity; or

(c) the execution of a will was obtained by undue influence or fraud,

must set out the contention specifically and give particulars of the facts and matters relied on.

(5)

(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.

(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.

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Counterclaim

57.8

(1) A defendant who contends that he has any claim or is entitled to any remedy relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person must serve a counterclaim making that contention.

(2) If the claimant fails to serve particulars of claim within the time allowed, the defendant may, with the permission of the court, serve a counterclaim and the probate claim shall then proceed as if the counterclaim were the particulars of claim.

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Probate counterclaim in other proceedings

57.9

(1) In this rule ‘probate counterclaim’ means a counterclaim in any claim other than a probate claim by which the defendant claims any such remedy as is mentioned in rule 57.1(2)(a).

(2 Subject to the following paragraphs of this rule, this Part shall apply with the necessary modifications to a probate counterclaim as it applies to a probate claim.

(3) A probate counterclaim must contain a statement of the nature of the interest of each of the parties in the estate of the deceased to which the probate counterclaim relates.

(4) Unless an application notice is issued within 7 days after the service of a probate counterclaim for an order under rule 3.1(2)(e) or 3.4 for the probate counterclaim to be dealt with in separate proceedings or to be struck out, and the application is granted, the court will order the transfer of the proceedings to either –

(a) the Chancery Division (if it is not already assigned to that Division) and to either the Royal Courts of Justice or a Chancery district registry (if it is not already proceeding in one of those places); or

(b) if the County Court has jurisdiction, to a County Court hearing centre where there is also a Chancery District Registry or the County Court at Central London.

(5) If an order is made that a probate counterclaim be dealt with in separate proceedings, the order shall order the transfer of the probate counterclaim as required under paragraph (4).

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Failure to acknowledge service or to file a defence

57.10

(1) A default judgment cannot be obtained in a probate claim and rule 10.2 and Part 12 do not apply.

(2) If any of several defendants fails to acknowledge service the claimant may –

(a) after the time for acknowledging service has expired; and

(b) upon filing written evidence of service of the claim form and (if no particulars of claim were contained in or served with the claim form) the particulars of claim on that defendant;

proceed with the probate claim as if that defendant had acknowledged service.

(3) If no defendant acknowledges service or files a defence then, unless on the application of the claimant the court orders the claim to be discontinued, the claimant may, after the time for acknowledging service or for filing a defence (as the case may be) has expired, apply to the court for an order that the claim is to proceed to trial.

(4) When making an application under paragraph (3) the claimant must file written evidence of service of the claim form and (if no particulars of claim were contained in or served with the claim form) the particulars of claim on each of the defendants.

(5) Where the court makes an order under paragraph (3), it may direct that the claim be tried on written evidence.

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Discontinuance and dismissal

57.11

(1) Part 38 does not apply to probate claims.

(2) At any stage of a probate claim the court, on the application of the claimant or of any defendant who has acknowledged service, may order that –

(a) the claim be discontinued or dismissed on such terms as to costs or otherwise as it thinks just; and

(b) a grant of probate of the will, or letters of administration of the estate, of the deceased person be made to the person entitled to the grant.

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II RECTIFICATION OF WILLS

Rectification of Wills

57.12

(1) This Section contains rules about claims for the rectification of a will.

(Section 20 of the Administration of Justice Act 19823 provides for rectification of a will. Additional provisions are contained in rule 55 of the Non-Contentious Probate Rules 19874.)

(2) Every personal representative of the estate shall be joined as a party.

(3) Practice Direction 57 makes provision for lodging the grant of probate or letters of administration with the will annexed in a claim under this Section.

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III SUBSTITUTION AND REMOVAL OF PERSONAL REPRESENTATIVES

Substitution and Removal of Personal Representatives

57.13

(1) This Section contains rules about claims and applications for substitution or removal of a personal representative.

(2) Claims under this Section must be brought in the High Court and are assigned to the Chancery Division.

(Section 50 of the Administration of Justice Act 19855 gives the High Court power to appoint a substitute for, or to remove, a personal representative.)

(3) Every personal representative of the estate shall be joined as a party.

(4) Practice Direction 57 makes provision for lodging the grant of probate or letters of administration in a claim under this Section.

(5) If substitution or removal of a personal representative is sought by application in existing proceedings, this rule shall apply with references to claims being read as if they referred to applications.

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IV CLAIMS UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

Scope of this section

57.14  This Section contains rules about claims under the Inheritance (Provision for Family and Dependants) Act 19756 (‘the Act’).

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Proceedings in the High Court

57.15

(1) Proceedings in the High Court under the Act shall be issued in either –

(a) the Chancery Division; or

(b) the Family Division.

(2) The Civil Procedure Rules apply to proceedings under the Act which are brought in the Family Division, except that the provisions of the Family Proceedings Rules 19917 relating to the drawing up and service of orders apply instead of the provisions in Part 40 and Practice Direction 40B.

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Procedure for claims under section 1 of the Act

57.16

(1) A claim under section 1 of the Act must be made by issuing a claim form in accordance with Part 8.

(2) Rule 8.3 (acknowledgment of service) and rule 8.5 (filing and serving written evidence) apply as modified by paragraphs (3) to (5) of this rule.

(3) The written evidence filed and served by the claimant with the claim form must, except in the circumstances specified in paragraph (3A), have exhibited to it an official copy of –

(a) the grant of probate or letters of administration in respect of the deceased's estate; and

(b) every testamentary document in respect of which probate or letters of administration were granted.

(3A) Where no grant has been obtained, the claimant may make a claim without naming a defendant and may apply for directions as to the representation of the estate. The written evidence must—

(a) explain the reasons why it has not been possible for a grant to be obtained;

(b) be accompanied by the original or a copy (if either is available) of the will or other testamentary document in respect of which probate or letters of administration are to be granted; and

(c) contain the following information, so far as known to the claimant—

(i) brief details of the property comprised in the estate, with an approximate estimate of its capital value and any income that is received from it;

(ii) brief details of the liabilities of the estate;

(iii) the names and addresses of the persons who are in possession of the documents relating to the estate; and

(iv) the names of the beneficiaries and their respective interests in the estate.

(3B) Where a claim is made in accordance with paragraph (3A), the court may give directions as to the parties to the claim and as to the representation of the estate either on the claimant’s application or on its own initiative.

(Section 4 of the 1975 Act as amended confirms that nothing prevents the making of an application under the Act before representation with respect to the estate of the deceased person is taken out.)

(4) Subject to paragraph (4A), the time within which a defendant must file and serve –

(a) an acknowledgment of service; and

(b) any written evidence,

is not more than 21 days after service of the claim form on him.

(4A) If the claim form is served out of the jurisdiction under rule 6.32 or 6.33, the period for filing an acknowledgment of service and any written evidence is 7 days longer than the relevant period specified in rule 6.35 or Practice Direction 6B.

(5) A defendant who is a personal representative of the deceased must file and serve written evidence, which must include the information required by Practice Direction 57.

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V PROCEEDINGS UNDER THE PRESUMPTION OF DEATH ACT 2013

Scope and interpretation

57.17

(1) This Section contains rules about proceedings under the Presumption of Death Act 2013.

(2) In this Section, terms used in the Presumption of Death Act 2013 Act have the meaning given by that Act, and—

(a) 'the 2013 Act' means the Presumption of Death Act 2013;

(b) 'a claim for a declaration of presumed death' means a claim under section 1 of the 2013 Act for a declaration that a missing person is presumed to be dead;

(c) 'a claim for a variation order' means a claim for an order under section 5 of the 2013 Act varying or revoking a declaration of presumed death.

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Proceedings to be in the High Court

57.18

(1) Proceedings under the 2013 Act must be issued in the High Court in either—

(a) the Chancery Division; or

(b) the Family Division.

(2) The Civil Procedure Rules apply to proceedings under the 2013 Act which are brought in the Family Division, except that the provisions of the Family Procedure Rules 2010(a) relating to the drawing up and service of orders apply instead of the provisions in Part 40 and Practice Direction 40B.

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Procedure for claims for a declaration of presumed death or a variation order

57.19

(1) A claim for a declaration of presumed death or for a variation order must be made by issuing a claim form in accordance with Part 8.

(2) In addition to the matters set out in rule 8.2 (contents of the claim form), the claim form must also include or be accompanied by the information required by Practice Direction 57B.

(3) Rules 8.2A, 8.3, 8.4 and 8.5 apply as modified by paragraphs (4) to (7) of this rule (and references elsewhere in these Rules to a defendant and to an acknowledgment of service are, where relevant, to be read as references to the substitute terms in rules 8.2A, 8.3, 8.4 and 8.5 as so modified).

(4) Rule 8.2A (issue of claim form without naming defendants) applies as if for 'without naming a defendant' in paragraph (1) there were substituted 'without serving notice on any person'.

(5) Rule 8.3 (acknowledgment of service) applies—

(a) as if, instead of referring to a defendant, it referred to a person giving notice of intention to intervene or applying for permission to intervene, as the case may be;

(b) as if, instead of referring to an acknowledgment of service, it referred to a notice of intention to intervene or an application for permission to intervene, as the case may be; and

(c) subject to paragraph (7), with the substitution of 21 days for 14 days as the time within which the notice of intention to intervene or application for permission to intervene must be filed and served.

(6) Rules 8.4 (consequence of not filing an acknowledgment of service) and 8.5 (filing and serving written evidence) apply—

(a) as if, instead of referring to a defendant, they referred to a person giving notice of intention to intervene or applying for permission to intervene, as the case may be; and

(b) as if, instead of referring to an acknowledgment of service, they referred to a notice of intention to intervene or an application for permission to intervene, as the case may be.

(7) If the claim form is served out of the jurisdiction under rule 6.32 or 6.33, the period for filing notice of intention to intervene or an application for permission to intervene, as the case may be, and any written evidence, is 7 days longer than the relevant period for serving an acknowledgement of service specified in rule 6.35 or Practice Direction 6B.

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Giving notice of claim

57.20

(1) Where the claim is for a declaration of presumed death, the claimant must give notice of the claim by serving a copy of it on the following persons (where not the claimant)—

(a) the spouse or civil partner of the missing person;

(b) any parent of the missing person;

(c) any child of the missing person;

(d) any sibling of the missing person;

(e) if there are no persons within sub-paragraphs (a) to (d), the nearest relative of the missing person known to the claimant; and

(f) any other person (including in particular any insurance company) appearing to the claimant to have an interest in the claim.

(2) Where the claim is for a variation order, the claimant must give notice of the claim by serving a copy of it on the following persons (where not the claimant)—

(a) the person who was the claimant for the declaration of presumed death or (as the case may be) previous variation order which it is sought to have varied or revoked;

(b) the spouse or civil partner of the missing person;

(c) any parent of the missing person;

(d) any child of the missing person;

(e) any sibling of the missing person;

(f) if there are no persons within sub-paragraphs (b) to (e), the nearest relative of the missing person known to the claimant; and

(g) any other person (including in particular any insurance company) appearing to the claimant to have an interest in the claim.

(3) Notice under paragraph (1)(a) to (f) or paragraph (2)(a) to (g) must be given within 7 days after the claim is issued.

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Advertisement of claim

57.21

(1) The claimant (whether the claim is for a declaration of presumed death or for a variation order) must, within 7 days of issue of the claim, ensure that notice of the claim is published—

(a) in a form which meets the requirements set out in Practice Direction 57B; and

(b) in at least one newspaper circulating in the vicinity of the last known address of the missing person.

(2) The claimant must, at least 5 days before the hearing, file a copy of the page of the newspaper bearing the advertisement of notice of the claim required by paragraph (1) and the date on which it was published.

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Interveners

57.22

(1) The Attorney General, or a person who is entitled to intervene in proceedings under section 11(1), must first notify the court of the intention to intervene in accordance with the requirements of Practice Direction 57B.

(2) Any other person who wishes to intervene in such proceedings must submit an application for permission to intervene in accordance with the requirements of Practice Direction 57B.

(3) Where the court grants permission to intervene, it may do so on conditions and may give case management directions.

(4) The court may direct that a person who intervenes in proceedings, other than the Attorney General, be joined as a claimant or defendant.

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Requirement to provide information

57.23

(1) An application for an order under section 12(1) of the 2013 Act must be supported by evidence and must in particular—

(a) specify or describe the information in respect of which the order is sought;

(b) set out the reasons why the person making the application believes that the person against whom the order is sought is likely to have such information; and

(c) include any further details, where known, of the missing person which are likely to assist in providing the information sought.

(2) The person making the application must serve a copy of the application notice on the person against whom the order is sought, and on every other party to the proceedings (within the meaning of section 20(2) of the 2013 Act), at least 14 days before the date fixed for the hearing of the application.

(3) An application for discharge or variation under section 12(6) of an order made under section 12(1) may be made without notice unless the court directs otherwise.

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Footnotes

  1. 2013 c. 13. Back to text
  2. 1981 c.54. Back to text
  3. 1982 c.53. Back to text
  4. S.I. 1987/2024 as amended by S.I. 1991/1876, S.I. 1998/1903 and 1999/1015. Back to text
  5. 1985 c.61. Back to text
  6. 1975 c.63. Back to text
  7. S.I. 1991/1247. There are no relevant amending instruments. Back to text
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