Contentious Probate- FS Flashcards
(15 cards)
What is Contentious Probate
Probate becomes contentious when a third party (e.g., a family member) challenges the grant of representation, such as disputing the validity of a will or the conduct of personal representatives.
What are the two procedural tools a third party can use to dispute a grant of representation?
- Lodging a caveat
- Applying for a citation (not covered in detail in this lesson but noted as an alternative)
What is a caveat in probate proceedings?
A formal objection lodged at the probate registry to prevent a grant of representation from being issued. It is used when someone disputes the will or the suitability of the executor.
What are the effects of lodging a caveat?
- No grant of representation can be issued while the caveat is in force
- The caveat lasts six months and can be renewed
- The executor can respond by issuing a warning to the caveator
What is Caveat Procedure Timeline
- Caveator lodges caveat (online or via Form PA8A)
- Executor may issue a warning to the caveator
- Caveator must enter an appearance within 8 days
- If no appearance is entered, the caveat may be removed
What happens if the caveator fails to respond to a warning?
If the caveator does not enter an appearance within eight days, the executor can apply to remove the caveat, allowing the grant of representation to proceed.
What form is used to lodge a caveat and how long is it valid?
- Form PA8A is used to lodge a caveat
- It lasts for six months and can be renewed on application
What is the Definition of Citation in Probate Law
A citation is a formal notice issued by the probate registry requiring a person to act (or respond) in relation to a grant of representation. It is used when there is delay, inaction, or dispute in the administration of a deceased’s estate.
What are the three types of citation in contentious probate?
- Citation to take probate
- Citation to propound a will
- Citation to accept or refuse a grant
When is a citation to take probate used?
When an executor has intermeddled with the estate (i.e., acted in their role) but fails to apply for a grant. The citor (person issuing the citation) may obtain a court order to pass over the executor if no action is taken.
What happens if a person fails to act after being cited to take probate?
The citor can apply to the court for an order to pass over the executor and issue a grant of letters of administration with the will annexed to the next entitled person under Rule 20 NCPR.
What is a citation to propound a will?
A citation requiring someone (typically an executor under a later will) to authenticate and prove the will (i.e., obtain probate). Used when a person’s interest depends on whether the later will is valid and acted upon.
When is a citation to accept or refuse a grant appropriate?
When someone entitled to a grant of representation is not acting, and a person with lower priority wishes to be cleared off to act instead. If the higher-priority person fails to act, the citor may take the grant.
Purposes of Each Type of Citation
- To take probate: Compels executor who has intermeddled to apply for a grant or be passed over
- To propound a will: Requires proving the will to authenticate its validity
- To accept or refuse a grant: Clears the path for someone with lower entitlement to apply if others don’t act
What is the legal consequence of intermeddling by an executor?
An executor who intermeddles loses the right to renounce their role and may be compelled to take out probate through a citation to take probate.
