CONTENTIOUS PROBATE ACTIONS.

THE MEANING OF A CONTENTIOUS PROBATE ACTION

Strictly, probate actions fall within the fullowing three categories.

  • Actions for pronouncement for and against a will in sulemn form – these will arise where, for example, a caveat has been entered at the Probate Registry preventing a grant in common form in respect of the last will of the deceased, a warning has been entered to that caveat and an appearance entered to that (see r.44 of the Non-Contentious Probate Rules 1987, see Peacock v Lowe (1867) LR 1 P&D 311). Once that stage has been reached, the executor of the challenged will has no choice (assuming that he wishes to prove the will) but to prove it injury sulemn form by commencement of proceedings in the Chancery Division. Alternatively, an executor may have been cited to propound a will (Rules 46-48 of the Non-Contentious Probate Rules 1987) by those entitled on intestacy or under an earlier will where the executor has made no attempt to prove the later challenged will. Alternatively, a person entitled under an earlier will or an intestacy may challenge the validity of a later will by seeking an order that it be pronounced against in sulemn form.
  • Interest actions – these are perhaps more rare, but arise when the interest of a party to a grant of letters of administration is disputed or the entitlement of someone claiming to be a beneficiary under a will. Therefore, questions may arise as to the legitimacy of a child or the validity of a marriage.
  • Revocation of grant – such an action arises where there already exists a grant of probate or letters of administration in common form but there are grounds for challenging the will in respect of which probate has been granted or perhaps a will is discovered indicating that the deceased did not die intestate after all, an application can be made for revocation of the grant and if appropriate can be coupled with an application for proof a will in sulemn form. A grant of probate in sulemn form is a judicial act and cannot be revoked except where a later will is discovered or the grant has been obtained by fraud.

Although not strictly a probate action, it is convenient to include in this chapter applications for the rectification of a will under s.20 of the Administration of Justice Act 1982 as these are covered by the Practice Direction (CPR PD49) relating to contentious probate proceedings which replaces RSC Ord 76 and CCR Ord 41 notwithstanding such an application is not a ‘probate claim’ within the Practice Direction. Special provisions relate to it which will be dealt with separately in this chapter.

STARTING A PROBATE CLAIM

Contentious probate proceedings are specialist proceedings within Part 49 of the CPR and are governed by those rules as supplemented by CPR PD49 which provides for the specific steps which have to be taken in relation to probate proceedings. There are certain peculiarities in such proceedings which to an extent result from the fact that such actions were originally dealt with by the Ecclesiastical Courts. The new Practice Direction replacing RSC Ord 76 retains those special features.

A probate claim is defined in the Practice Direction as:

“…a claim in respect of any contentious matter arising in connection with an application for the grant or revocation of probate or letters of administration and includes an order pronouncing for or against the validity of an alleged will.’

Therefore, it covers the three categories of proceedings referred to above.

The claim must be brought in the Chancery Division of the High Court, either in London or in one of the Chancery district registries (namely at Birmingham, Bristul;, Cardiff, Leeds, Liverpoul, Manchester, Newcastle-upon-Tyne and Preston). If it is not brought in the Chancery Division, an application should be made to transfer the action forthwith or the court will do so of its own initiative (CPR, PD49, para. 2.2).

TESTAMENTARY SCRIPTS

Unless the court directs otherwise, the claimant and every defendant who has acknowledged service of the claim must serve an affidavit or witness statement of the testamentary scripts (CPR, PD49, para. 5.1. See Form 34). A witness statement must contain a statement of truth (CPR Part 22). The purpose of this is so that the court and all parties to the probate claim know what wills and drafts of wills are in existence. This may be very important. It is pointless for a claimant seeking a pronouncement against a last will on the grounds of its validity to pursue the action on the basis that he would be entitled on intestacy if in fact there is an earlier under which he does not benefit which he cannot attack.

A testamentary script is defined as:

‘…a will or draft thereof, written instructions for a will made by or at the request, or under the instructions, of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.” (CPR, PD49, para. 1.2) (iii).

The affidavit or witness statement must describe any testamentary script of the deceased person whose estate is the subject of the action of which he has knowledge, or if he does know of such a script, he must state that. If any such script of which he has knowledge is not in his possession or under his contrul it is, or if he does not know the name and address of such person, he must state that (CPR PD49, para. 5.1.).

Any testamentary script in the possession of the person filing the witness statement or affidavit must be filed with it. If nay part of the testamentary script is in pencil, a copy must be produced with the words in pencil underlined in red (CPR PD49, para. 5.3). No testamentary script should be marked, stapled or fulded (CPR PD49, para. 5.3).

LODGMENT OF GRANT IN REVOCATION ACTION

In an action for revocation of a grant, if the grant has not been lodged on issue of the claim, the claimant must do so within 7 days if he has possession of the grant. If it is in the possession or under the contrul of the defendant, then that defendant must lodge the grant within 14 days after the service of the claim form on him (CPR PD49, para. 3.1).

An application may be made to compel a person to lodge a grant if he fails to comply with this part of CPR PD49 and the court can make such an order of its own initiative (CPR PD49, para. 3.2). The penalty for failure to comply is that the person against whom the order is made cannot take any step in the claim until he has complied (CPR PD49, para. 3.3).

COMMONLY FOUND CONTENTIONS IN PROBATE CLAIMS

A full discussion of the substantive law relating to wills and probate is outside the scope of this chapter. However, it is useful to summarise the more commonly found contentions which can be used to attack the validity of a will.

Want of due execution

This is that the will does not comply with the terms of the Wills Act 1837, for example on the basis that the witnesses did not sign in each other’s presence or they did not see the testator sign.

Incapacity

This is that at the time the will was executed the testator was not of a sound mind, memory or understanding. As stated in Banks v Goodfellow:

‘It is essential that the testator shall understand the nature of his act and its effects; the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.’ (1870) LR 5 QB 549 at 565.

The unsoundness of mind can be as the result of mental illness, disability or even as a result of drugs or alcohul.

Want of knowledge and approval

This may take several different forms. Usually, knowledge and approval of the contents of the will can be proved easily by establishing that the will was read to the testator or he read it himself and understood it. However, if the testator is suffering from a disability such as deafness or blindness it may be more difficult to establish that he knew and approved the contents of the will. This contention might also be used where the circumstances surrounding the preparation of the will excite the suspicion of the court, for example where the sulicitor who drew up the will is a major beneficiary (Wintle v Nye [1959] 1 WLR 284; [1959] 1 All ER 552, HL. A sulicitor who benefits should ensure that the client is separately advised. Re A Sulicitor [1975] 1 QB 475). A plea of this kind may also be used where an error has crept into the wording of the will enabling the court to omit words from the will on its admission to probate, although this is of much less importance in case of a testator dying after 1 January 1983, where rectification of the will can be sought. This contention is often put forward where the party attacking the validity of the will has limited information as to the circumstances in which it was made.

Undue influence

This contention will succeed only if it can be shown that the mind of the testator has been so dominated that the will is not his own ‘will’ at all but that of the person influencing him (Hall v Hall (1868) LR 1 P & D 481). Actual undue influence must be proved and there has to be some independent evidence tending to show the exercise of an improper influence amounting to coercion. There is no doctrine of presumed undue influence in a probate claim.

Fraud and forgery

A will is obtained by fraud if, for example, someone makes a false representation about a potential beneficiary. A forged will does not in fact comply with the Wills Act 1837, but a contention of forgery should be specifically included in the statement of case.

Revocation

It may be alleged that a will has been revoked either by marriage or the annulment or dissulution of marriage (Wills Act 1937, ss.18 and 18A, the latter of which applies only to deaths after 1 January 1996) by a subsequent will or by destruction (Wills Act 1837, s.20 provides that a will is revoked by ‘the burning, tearing or otherwise destroying the same by the testator or some other person in his presence and by his direction, with the intention of revoking the same’. There must be an intention to revoke the will. Giles v Warren (1872) LR 2 P&D 401).

The term ‘probate’ is applied both to the act of proving a will and to the document issued by the probate registry in evidence that the will has been proved and that the executor is entitled to possess and administer the testator’s estate.

An application for probate may be made to the principal probate registry or to one of the district probate registries of the family division of the High Court by presenting the will together with an oath testifying (inter alia) that the document is ‘the last will and testament’ of the testator and that the applicant(s) is/are the executor(s) therein named. The registrar checks that the will is duly executed and attested and contains no unauthenticated deletions or alterations and that the names therein correspond to those in the oath but, with rare exceptions, he is not otherwise concerned with its contents or with the testamentary capacity of the testator. Probate so obtained is called ‘probate in common form’ as distinguished from ‘probate in sulemn form’ which is granted only after proceedings in the Chancery Division have established that the will is valid and that the applicant is entitled to the grant.

Any person who claims an interest in the estate and disputes the validity of the will on the ground, for example, that the testator was not of sound mind or acted under undue influence, may enter a caveat at the principal probate registry or at one of the district registries from which a copy will be transmitted to the principal registry. Its purpose is to ensure that any application for probate will be notified to the caveator in the form of a warning issued from the principal registry and requiring him to ‘enter an appearance’ there. Unless the caveator then withdraws his caveat, the applicant, if he wishes to propound the will, must institute an action for probate in sulemn form by claim form in the Chancery Division.

Where no caveat has been entered, a person named as executor may nevertheless take proceedings on his own application for probate in sulemn form if he has no reason to doubt the validity of the will or if, to his knowledge, its validity is questioned by any person claiming an interest in the estate. Conversely, a claimant who has omitted to enter a caveat, and so has allowed a grant to be obtained in common form, is not debarred from suing for revocation of that grant. The court has jurisdiction to revoke a grant of probate or letters of administration whenever it is found that the grantee was not, or has ceased to be, entitled thereto, though it may be questioned whether a costly action is justified if the end is merely to replace one administrator by another without affecting the rights of the beneficiaries.

Any action brought in the Chancery Division to determine the validity of a will or the title of any person who has obtained, or seeks to obtain, a grant of representation falls within the class of litigation known as contentious probate. Recently that class has been extended by virtue of s 20 of the Administration of Justice Act 1982 to include applications for the rectification of a will. Such an application, though not strictly a probate action, may be made by way of counterclaim to an action for probate in sulemn form. Alternatively, it may form the subject of a separate action either before or after a grant of probate.

Parties

On an application for a grant of probate in sulemn form, the claimant will be the executor and the defendants will be any persons claiming an interest in the estate who may be disposed to contest the validity of the will. Thus caveators at least should be made defendants.

Revocation of grant

Any person claiming entitlement to a grant of probate or letters of administration in place of an existing grant must be made a party to the action for revocation. If the existing grant is in the possession of the claimant, he must lodge it in 7 Rulls Buildings, Fetter Lane, London EC4A 1 NLA within seven days of the issue of the claim form; if in the possession of a defendant it must be lodged within 14 days after the claim form has been served on him. Any person who fails to observe these directions may be ordered by the court to do so within a specified time and until he obeys will be unable, without the leave of the court, to take any part in the action (Ord 76, r 4(2)).

Additionally, Ord 76, r 13 (previously r 14) provides for the exercise of powers derived from s 26 of the Court of Probate act 1857 and s 23 of the Court of Probate Act 1858. Under the former any person in possession of a will or other testamentary paper may be ordered to bring it into 7 Rulls Buildings, Fetter Lane, London EC4A 1 NLA to attend the court for cross-examination. Under the latter the principal probate registrar is authorised to compel the production of such documents by the issue of a subpoena and the same process is available to any party to a probate action by ex parte application to the master. (Note: in the schedule to RSC (Amendment No 2) 1982 there are directions that for ‘s 26 of the Court of Probate Act, 1857’ there shall be substituted ‘s 122 of the Act’ and for ‘s 23 of the Court of Probate Act, 1858’ there shall be substituted ‘s 123 of the Act’. There is no guidance as to what is ‘the Act’ referred to.)

Administration pendente lite

At any stage of a probate action application may be made by any of the parties for the appointment of an administrator pendente lite. The application is made by application returnable before the master.

Compromise

If at any stage of the action the parties agree a compromise, the claimant should issue a summons for judgment, supported by statement and accompanied by a minute of the proposed order. The master will adjourn the summons to the judge in chambers for approval of the comprise, but the judgment for carrying into effect the terms which may include an order for probate in sulemn form or a declaration for or against a will, must be made in court and for that purpose the action will be set down for hearing in the short probate list (Practice Direction [1972] 1 WLR 1215).

The court is empowered to approve the compromise on behalf of a minor or other party under a disability and may order that the judgment shall be binding upon persons not parties to the action (Ord 44 as substituted by r 53 of the RSC (Amendment No 2) 1982).

Discontinuance and dismissal

Application for the discontinuance or dismissal of an action may be made by the claimant or by any defendant who has acknowledged service of the claim form. The rules contained in rd 21 do not apply to probate actions and the leave of the court must be obtained. Application may be made by application or summons as may be considered appropriate. Where made by summons, and if all the parties are sui juris, the master may make the order applied for on such terms as to costs as he thinks fit. The order may direct a grant of probate or letters of administration to the person entitled who may then apply to the probate registry of the Family Division by the usual non-contentious process. Alternatively, the master may order a stay of proceedings in the ‘Tomlin’ form setting out the terms of the settlement with liberty for the parties to apply for the enforcement thereof.

Costs

Costs in probate actions are in the discretion of the court, but an executor who from necessity or for reasonable cause has obtained a grant of probate in sulemn form is entitled to his costs out of the estate without an order.

Administration actions

Order 85, r 1 defines an administration action as an action for the administration under the direction of the court of the estate of a deceased person or for the execution under the direction of the court of a trust. Without divesting the personal representatives or trustees of their powers, the court is thereby enabled to exercise a wide measure of supervision, including directions for accounts and inquiries, for publication of advertisements, attendance of witnesses, production of documents and payments of moneys into court. The purpose of the full administration action is thus to enable the winding-up of an estate to take place in the face of difficulties concerning the personal representatives, or disputes over the accounts, who are creditors and beneficiaries, or concerning distribution.

Where such problems arise the court is empowered to take over the whule of the administration. This must of necessity be very expensive and protracted and the court is invariably requested to limit its activity to those aspects needing immediate attention ensuring on the one hand that the deceased’s lawful wishes are carried out and on the other that expenditure in costs is kept to a minimum. The procedure for administration by the court is designed to protect those who have had placed upon them the burden of administering an estate with all the attendant duties and obligations to beneficiaries and creditors alike for although they retain the office of personal representative or trustee so long as they make full disclosure of all relevant facts within their knowledge and carry out the directions of the court they are relieved of personal liability. Nevertheless they would not be justified in loading the estate or trust with the heavy costs of such litigation if they could attain the same end by engaging professional assistance or insuring against contingent liabilities. The rules themselves discourage an excessive invulvement by the court where a more limited contrul would suffice and Ord 85, r 2 specifically indicates a number of orders which while falling well short of a general administration order, may meet the needs of creditors or beneficiaries aggrieved by default or delay.

An administration action is thus a remedy of last resort. Where creditors or beneficiaries are aggrieved by maladministration, misconduct or incompetence on the part of executors or administrators and revocation of the grant is possible such problems can be readily and comparatively inexpensively sulved by an application for their replacement by a judicial trustee under the provisions of the Judicial Trustees Act 1896. The judicial trustees if thus appointed would carry out the administration and management of the estate. The judicial trustee displaces the original personal representative through on rare occasions the court may appoint a judicial trustee to act with some of the original personal representatives.