Probate Action
Introduction:
This note will discuss the meaning of probate action, commencement of a probate action, effect of failing to enter appearance in a probate action, pleadings in probate action, effect of default of pleadings, administration pendente lite, and discontinuance of a probate action.
Meaning of Probate Action:
In Order 66 Rule 32 of the High Court Civil Procedure Rules, 2004 (CI 47) , it is provided that a probate action means:
An action for the grant of probate of the will or letters of administration of the estate of a deceased person or
[An action] for the revocation of such grant or
[An action] for a judgment or order pronouncing for or against the validity of an alleged will, being an action which is contentious or not common form probate business.
Thus, any action that is an action for the grant of probate or letters of administration, an action to revoke a grant of probate or letters of administration, or an action for judgement that a will is valid or invalid, is a probate action.
Commencement of a Probate Action:
In Order 66 Rule 33(1), it is provided that a probate action shall be commenced by a writ. The writ must be endorsed with the following:
If the action is one for the revocation of the grant of probate of a will or letters of administration, and before the writ is issued, there should be notice given to the person to whom the grant of probate or letters of administration was given to deposit at the registry of the court the probate or letters of administration (Order 66 Rule 37).
In Order 66 Rule 40, it is provided that the writ shall be accompanied by a statement of claim which must be served on the defendant and on all persons who subsequently join the action through a process known as intervention. If the plaintiff disputes the interest under a will claimed by a defendant, the plaintiff shall state in the statement of claim that he denies the interest. Note that the plaintiff will become aware of the interest of the defendant under a will if a person who claims an interest under the will gives written notice to the executors to prove the will of the deceased.
What Happens if the Defendant in a Probate Action Fails to Enter Appearance?
In a non-probate action, the plaintiff may get judgement in default of appearance if the defendant fails to enter appearance. In a probate action, however, Order 66 Rule 39 provides that “a judgement in default of appearance shall not be entered in a probate action.” It further provides that if there is default of appearance after due service of the writ, the plaintiff may set down the action for trial after the time limited for appearance.
Pleadings in a Probate Action:
There are three pleadings in a probate action. The first is the statement of claim which was highlighted above.
The second is the statement of defence. In Order 66 Rule 40 , it is provided that:
Every defendant who is served with a writ and a statement of claim and who enters an appearance shall file a statement of defence not later than fourteen days after appearance.
The third is a counter claim. In Order 66 Rule 44, it is provided that:
A defendant to a probate action who alleges that the defendant has any claim or is entitled to any relief or remedy, in respect of any matter relating to the grant of probate or letters of administration of the estate of the deceased person which is the subject of the action, shall add to the defence a counterclaim in respect of the claim, relief or remedy.
What Happens if the Defendant in a Probate Action Fails to Plead?
In Order 66 Rule 42, it is provided that a judgement shall not be given in default of pleadings in a probate action. Here, the court may strike out the action. However, if the court does not, the other party may apply to the court to set down the action for trial. It should be remembered that a probate action may commence if a party claiming an interest under a will gives notice to the executor to prove the will in solemn form. If the court strikes out the action, the notice-giving party loses because the executor would not be required to prove the will.
Joining a Probate Action by Application for Leave to Intervene:
After the commencement of a probate action, a person with an interest in the action may become party to the action through a process known as intervention (note, not joinder). This is provided for in Order 66 Rule 34, which reads:
(1) A person not already a party to a probate action may apply to the Court for leave to intervene in the action.
(2) The application must be supported by an affidavit which shows the interest of the applicant in the estate of the deceased and shall be served on all the existing parties.
(3) Where the Court grants leave under this rule, it may give such directions as to the service of pleadings, filing of affidavit or of testamentary scripts and other matters as it considers necessary.
Applying for Administration Pendente Lite After Commencing a Probate Action:
This is administration that is granted during the pendency of a probate action on the validity of a will. The power to administer the estate is, however, subject to the following limits:
These are contained in Section 80(1) of the Administration of Estates Act 1961 (Act 63), which reads:
Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, are pending, the court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate, and the administrator shall be subject to the immediate control of the court and act under its direction.
Order 66 Rule 58 allows this application to be made by one of the parties to the suit after the commencement of a probate action. Among others, it also provides that the parties may agree on the person to be appointed as the administrator pendente lite. If they do not reach such an agreement, the court shall appoint any person as it deems fit. Upon such appointment, the rule also requires that the administrator pendente lite give security in such sum and in such manner as the court shall direct.
Discontinuing a Probate Action:
Once a probate action commences, it shall not be discontinued without the leave of the court, as provided in Order 66 Rule 43. A party to the action, such as the plaintiff or any defendant who has entered an appearance, may apply to the court to discontinue the action. The court may grant the application on such terms as to costs as it thinks just.
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