#3247 - Application For Grant And Drafting Oaths

Application for grant and Oaths

Making an Application for grant:

Application for grant - what to send to the Probate Registry:

Original Will / codicils
Appropriate oath
Affidavit evidence if required
IHT 205 (for excepted estates) or IHT 400 for non-excepted estates
Cheque for probate fee

Affidavit evidence:

Due execution	Will / codicil must be executed in accordance with S.9 Wills Act 1837: In writing Signed by T Intention to sign by T 2 witnesses who attest and sign Attestation clause = creates a presumption of due execution If no attestation clause = due execution must be proven with evidence. Usually witnesses will be required to give evidence first. One witness is usually enough. Testator’s signature Affidavit of due execution needed where there is no attestation clause and: Testator does not sign at bottom of the will – evidence to show he intended his signature to be final execution of the will / codicil. Testator’s signature appears below the witnesses – presumption that T signed after the Ws – so the will becomes invalid. Evidence to say otherwise [i.e. T signed first] is required. Ts signature arouses suspicion – e.g. Handwriting set out the exact circumstances of execution [including the facts that T read, understood and signed the will. Confirm that T had knowledge and approval of contents of the will. Testator signs with “X” or printed signature – the register will accept an affidavit from any person who is considered appropriate by the registrar AND is able to show that it was the handwriting of the deceased. Affidavit should include: The fact that the will was read over by the testator Testator understood the contents Signature of Witnesses Affidavit of due execution needed where there is no attestation clause and The witness has only signed by writing initials / printed their name. Creates a presumption that the initials could have been inserted as a guide to show where witness was meant to sign. Affidavit will need to show that witness intended the initials / name to be effective as a signature of execution.
Alterations	Any unexecuted alterations is presumed to have been made after due execution and therefore is invalid / inadmissible. The Signature / initials of T and Ws is needed for it to be admissible Affidavit: provide evidence as to whether the alteration existed before the will / codicil was executed. Must be provided by both witnesses (or anyone present at the time of execution). Alteration of something that has no practical importance (e.g. address or inoperative contingent gift) – alteration will be accepted without need for further evidence. After this – engrossment [a “fiat copy’] of will is prepared (omitting any alteration that cannot be proven to have existed before execution). This will be the probate copy! Any alteration that is not possible to read [i.e. too messy] will be obliterated and treated as revoked. A blank space will appear in the fiat copy where this is the case.
Date	If there is some doubt as to when the will was executed – need affidavit evidence by a witness / someone present who can establish exact date.
Conditions of the will	If there is any evidence that the will / codicil may have been interfered with - need affidavit evidence to the conditions at the time of execution will be needed. Affidavit of search for any other testamentary documents may also be required. 1. Signs of cancellation of any form Signs of burns / tears / obliterations etc Creates a presumption of Ts attempt to revoke his will by destruction. Presumption must be rebutted. Evidence of how the will came to be in this present condition is needed. If not possible, need evidence that will is in the same condition as it was found in. Who had custody of the will? What do witnesses say about the state of the document at time of execution. 2. Attachments Some sign that there was a document attached to the will – e.g. staple marks / paperclips. If solicitor cannot confirm there was no attachments of testamentary nature – then evidence will be required [by the person responsible for the attachment of papers]. If documents cannot be found – evidence that the will was in the same condition as when it was found.
Name of executor / beneficiaries	Discrepancy of names in will / someone is not confirmed by name [e.g. “my wife” – evidence needed to confirm the identity – For executors: only where there are serious discrepancies will a separate affidavit be required. [Otherwise put it in the Oath] Include: Confirmation of identity – I am Louise Pattison Confirmation of his address – I live at 23 Nassau Road Confirmation that he was asked to be executor/ that she is wife of Ronald Pattison NO other “Louise Pattison” living at that address

Oaths

When is an oath needed?

Making an Application for Grant to the Principal Registry of the Family Division / District Probate Registry.

3 different types of grant each one must be supported by a different type of oath.

What the oath is for:

PRs are required to provide details of the deceased and the value of his/ her estate, which is passing through their hands and the basis of their claim to apply for grant.

In the oath they will declare that they shall administer the estate correctly.

Three types of oath:

Oath for executors [For the grant of probate]
Oath for administrators (with will annexed) [For grant of letters of administration where there is a will annexed but no executors]
Oath for administrators [For the grant of letters of administration where there is NO WILL]

Grant of probate = Oath for executors Issue of eligibility to act as an executor – elderly / dead / living far away / bad relationship with T / cannot be found. 4 executors in total Some executors need to be “cleared off” Registry requires that all executors are given notice – cannot be cleared off otherwise Solutions: Non-Appropriate executor = Executor can renounce probate [sign a ‘Form of Renunciation’] – so long as there is no intermeddling [i.e. he has not yet begun to administer the estate]. Must be in writing / signed by the renouncing executor and lodged at Probate registry. Liability will cease. Power to reserve – e.g. for executor who is abroad for a long period of time. Executor is reserving his right to come in later if necessary. Executor must be given notice that a grant for probate if proceeding without him. Liability will continue. Executor who has vanished – cannot be cleared off! Potentially going to stall the whole administration of the estate. Very difficult to completely vanish however! If he has vanished – ask registry to dispense with the requirement to give notice to all executors.
Grant of letters of administration with will annexed: Oath for Administrators There is a will – but no executors Administrators cannot reserve power; but they can renounce his right to a grant without his beneficial entitlement being effected. If there is more than one person with equal entitlement = both can apply without notice to the other. RULE 20 Non Contentious Probate Rules [NCPR] Must clear off any higher category in the oath Authority of administrator = no formal authority until the grant has been issues. Until this happened the deceased’s property vests in the President of the Family Division.
Grant of letters of administration – no will: Oath for Administrators Oath of administrators Administrators cannot reserve power; but they can renounce his right to a grant without his beneficial entitlement being effected. If there is more than one person with equal entitlement = both can apply...

Grant of probate = Oath for executors

Issue of eligibility to act as an executor – elderly / dead / living far away / bad relationship with T / cannot be found.
4 executors in total
Some executors need to be “cleared off”
Registry requires that all executors are given notice – cannot be cleared off otherwise

Solutions:

Non-Appropriate executor =

Executor can renounce probate [sign a ‘Form of Renunciation’] – so long as there is no intermeddling [i.e. he has not yet begun to administer the estate]. Must be in writing / signed by the renouncing executor and lodged at Probate registry. Liability will cease.
Power to reserve – e.g. for executor who is abroad for a long period of time. Executor is reserving his right to come in later if necessary. Executor must be given notice that a grant for probate if proceeding without him. Liability will continue.

Executor who has vanished – cannot be cleared off! Potentially going to stall the whole administration of the estate. Very difficult to completely vanish however! If he has vanished – ask registry to dispense with the requirement to give notice to all executors.

Grant of letters of administration with will annexed: Oath for Administrators

There is a will – but no executors
Administrators cannot reserve power; but they can renounce his right to a grant without his beneficial entitlement being effected.
If there is more than one person with equal entitlement = both can apply without notice to the other.
RULE 20 Non Contentious Probate Rules [NCPR]
Must clear off any higher category in the oath
Authority of administrator = no formal authority until the grant has been issues. Until this happened the deceased’s property vests in the President of the Family Division.

Grant of letters of administration – no will: Oath for Administrators

Oath of administrators

Administrators cannot reserve power; but they can renounce his right to a grant without his beneficial entitlement being effected.
If there is more than one person with equal entitlement = both can apply...

#3247 - Application For Grant And Drafting Oaths - Private Client

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