Probate Practice Guide by Karl Dowling BL

The Limitation of Actions & Time Limits

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The Limitation of Actions & Time Limits in Probate Practice (& Associated Practical Issues)

CAVEATS

Section 38(1) of the Succession Act 1965 (the “1965 Act”) provides that:

A Caveat against a grant may be entered in the Probate Office or in any district probate registry.

 

Order 79, rules 41 to 51 of the Rules of the Superior Courts deal with the caveat procedure in the Probate Office, whilst Order 80 rules 48 to 55 sets out the procedures in District Probate Registries. Order 79, rules 41 to 51 provide:

  1. Any person intending to oppose the issuing of a grant of probate or letters of administration shall either personally or by his solicitor, lodge a caveat in the Probate Office, or in a District Registry.
  1. A caveat shall bear date of the day it is lodged, and shall remain in force for the space of six months only, and then expire and be of no effect; but caveats may be renewed from time to time.
  1. Every caveat shall state the name and address of the person on whose behalf the same is lodged, and the registered place of business of the solicitor lodging the same, or if there be no solicitor, an address for service (within the jurisdiction) at which the caveat can be warned, and where the case is so, the caveat shall state that it is lodged only with a view to seeing that the security is sufficient.
  1. Any person who shall knowingly lodge, or cause to be lodged in the Probate Office, a caveat in the name of a fictitious person, or with a false address of the person on whose behalf it purports to be lodged, shall be deemed guilty of a contempt of Court.
  1. The Probate Officer shall, immediately upon a caveat being lodged, send notice thereof to the District Registrar of the district in which it is alleged the deceased resided at the time of his death, or in which he is known to have had a fixed place of abode at the time of his death.
  1. No caveat shall affect any grant made on the day on which the caveat has been lodged, or on the day on which notice is received of a caveat having been lodged in a District Registry.
  1. All caveats shall be warned from the Probate Office. The warning shall be served by delivery of a copy thereof at the place mentioned in the caveat as the registered place of business of the solicitor, or address for service of the person who lodged the caveat, as the case may be, within 14 days of the date thereof; and otherwise shall be deemed inoperative unless the Court or the Probate Officer shall make a special order on the subject.
  1. In addition to the service of the warning the Probate Officer shall, on the same day on which the warning is signed by him, send by post a copy of it to the solicitor or person who lodged the caveat at the registered place of business or address for service therein mentioned and on the same day a memorandum of such posting shall be entered in the book to be kept for that purpose.
  1. The warning to a caveat shall state the name and interest of the party on whose behalf the same is issued; and if such person claims under a will, it shall state the date, if any, of such will, and in any event state the registered place of business of the solicitor lodging the same, or if there be no solicitor, an address for service within the jurisdiction.
  1. An appearance to a warning shall be entered in the Probate Office within 14 days of the service thereof, provided that the time for appearance may be considered to be extended until action on default has been taken under rule 51.
  1. In order to clear off a caveat, when no appearance has been entered to a warning duly served, an affidavit of the service of the warning in manner required by rule 47 and a certificate of non-appearance shall be filed.

 

A caveat is an entry made in the books of the Probate Office or District Registry, which has the purpose of preventing the issuing of a grant of probate or letters of administration without notice being given to the person who lodged the caveat.

Therefore, no grant can issue until the caveat has been removed or after the expiry of six months after its lodgment, provided that it is not renewed. The caveat must contain the following:

  • the date of lodgment;
  • the name and address of the caveator; and
  • the name and address of the person or solicitor who lodged it.

The response to a caveat is called a ‘warning’, which must be filed in the Probate Office or District Registry and contain the following:

  • the name and address of the person on whose behalf it has been issued;
  • a statement as to whether the person who issued it claims under the will;
  • the date of the will; and
  • the registered place of business of the solicitor who lodged the warning or the name and address of the person who lodged it.

In terms of time periods, the warning must be served within 14 days of its issue, on either the caveator’s solicitors, or if it was personally lodged, on the caveator. After the service of the warning, the caveator must then enter an appearance in the Probate Office or District Registry within 14 days of service. Where no appearance is entered to the warning, the Probate Office or District Registry can remove the caveat once an affidavit of service of the warning, together with a certificate of non-appearance, is lodged.

 

If an appearance is entered on behalf of the caveator, an application may be made to court to have the caveat removed if any of the following can be demonstrated:

 

  • that the caveator has no interest in the estate of the deceased either under the will or on intestacy;
  • that the caveat has been entered in order to obstruct an order made by the court from being carried into effect; or
  • that the caveat has been entered merely for the purpose of delaying the issue of the grant.

 

It is important to note that before bringing an application before the court seeking to have to the caveat set aside, the caveator should be requested to remove the caveat or set out the basis in writing for having filed same.

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By | 2017-03-04T20:04:44+00:00 November 9th, 2016|Papers, Probate|0 Comments

About the Author:

Karl Dowling is a Barrister at Bar of Ireland & Bar of England and Wales. He is editor of the Irish Probate Journal and Committee member of the Society of Trust and Estate Practitioners (STEP) Ireland and coordinator of the Law Society's Certificate & Diploma in Trust and Estate Planning.