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)

CITATIONS

A citation is a document which is issued by the Probate Office by a person who has an interest in an estate, which has the effect of requiring the executor, or any other person entitled in priority to a grant, to prove the will where they have failed to do so and will not renounce their rights. It is important to note that citations can only issue from the Probate Office and not District Probate Registries.

Order 79 rules 52 to 58 of the Rules of the Superior Courts, which govern the procedure that must be adopted in relation to citations, provide that:

  1. A citation shall not issue under the seal of the Court until an affidavit, in verification of the averments it contains, has been filed in the Probate Office. All citations shall issue from the Probate Office.
  1. (1) When the person to be served with a citation is within the jurisdiction or being abroad is a citizen of Ireland, the citation itself shall be served on him.

(2) When the person to be served, being abroad, is not a citizen of Ireland, notice only of the citation shall be served on him.

(3) The affidavit to lead to a citation shall in all cases in which any person to be served is outside the jurisdiction show whether such person is or is not a citizen of Ireland.

(4) A citation, or notice of a citation, shall be served personally when that can be done.

(5) Where personal service is intended to be effected [sic], no order of the Court shall be necessary for the issue of the citation.

(6) Where personal service cannot be effected [sic] the party desiring to serve the citation shall apply to the Court for directions as to the mode of service.

 

  1. A citation shall not be signed by the Probate Officer unless and until a caveat shall have been entered against any grant being made in respect of the estate of the deceased to which such citation relates, and notice thereof shall be sent to the District Registrar of the district in which the deceased appears to have had a residence at the time of his death.
  1. A citation shall be written, typed or printed, and the party extracting the same, or his solicitor, shall take it together with a copy thereof to the Probate Office and there deposit the copy, and get the citation signed and sealed. The citation shall contain a statement of the registered place of business of the solicitor extracting the same, or if extracted by a party in person, an address for service within the jurisdiction.
  1. An appearance to a citation 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 57.
  1. If the party cited to accept or refuse probate or administration having been served with a citation, shall not appear within the time limited by the citation, or if the time for appearing shall be extended by the Court, or the Probate Officer, and such party shall not appear within such extended time, his non-appearance shall be deemed and taken as and for a renunciation of his right to probate or administration, as the case may be, and the party citing shall be entitled to obtain from the Probate Officer a side-bar order in the estate of the deceased to the following effect:

“on reading citation and affidavit of …. it is ordered that the non-appearance of C.D. (naming the party cited) be taken as and for a renunciation of his right to probate (or administration)”.

  1. A party cited to accept or refuse probate or administration and desiring to accept, shall so state on entering his appearance, and thereupon the party citing shall be entitled to obtain from the Probate Officer a side-bar order in the estate of the deceased to the following effect:

“On reading the citation, and (party cited) having in his appearance stated his desire to accept probate (or administration) let him extract same within fourteen days from the date of service of this order upon him and in case he shall not do so within that time, or within such further time (if any) as the Court or the Probate Officer shall allow for that purpose, let his not doing so be deemed and taken as and for a renunciation of his right to probate (or administration). A copy of such side-bar order shall be served forthwith on the party appearing.”

 

Commonly, citations may be used in the following instances:

  • where the person who holds the right to extract a grant, either delays or declines to apply for the grant and refuses to renounce their right to do so; or
  • where a person has knowledge of the existence of a will or codicil, but relies on an earlier will or codicil or on intestacy.

 

In terms of the procedure for seeking a citation, the following steps must be taken:

  • Enter a caveat in the Rules Office.
  • Lodge an affidavit which sets out all of the circumstances of the case and showing interest. If the Probate Officer is satisfied, an order will be made for the issue of the citation. The will (copy or original), if any, should be lodged.
  • Produce three copies of the citation. The Probate Officer will sign one copy, which will be sealed and becomes the original.
  • One copy of the citation must be personally served on the respondent.
  • The person served with the citation may enter an appearance within eight days.
  • Where no appearance is entered, his non-appearance will be taken as a renunciation of his rights to apply for probate or letters of administration and a Side Bar Order will issue to that effect.
  • If an appearance is entered, a Side Bar Order may issue directing the person cited to extract a grant within a period of 14 days.

 

RIVAL APPLICATIONS

Order 79, rule 5(3) of the Rules of the Superior Courts provides that:

Where there are conflicting claims for a grant among the members of a class entitled to administration, the grant shall be made to such of the claimants as the Probate Officer shall select having given not less than 21 days [sic] notice to the rival claimants, or on objection made in writing within the said period, to such person as the Court shall select.

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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.