The Non-Contentious Probate Rules 1987

Made: 24th November 1987

Laid before Parliament: 10th December 1987

Coming into force: 1st January 1988

The President of the Family Division, in exercise of the powers conferred upon him by section 127 of the Supreme Court Act 1981[^f00001], and section 2(5) of the Colonial Probates Act 1892[^f00002], and with the concurrence of the Lord Chancellor, hereby makes the following Rules:

Citation and commencement

1

These Rules may be cited as the Non-Contentious Probate Rules 1987 and shall come into force on 1st January 1988.

Interpretation

2

• (1) In these Rules, unless the context otherwise requires—

• “the Act” means the Supreme Court Act 1981;

• “authorised officer” means any officer of a registry who is for the time being authorised by the President to administer any oath or to take any affidavit required for any purpose connected with his duties;

• “the Crown” includes the Crown in right of the Duchy of Lancaster and the Duke of Cornwall for the time being;

• “district judge” means a district judge of the Principal Registry;

• “grant” means a grant of probate or administration and includes, where the context so admits, the resealing of such a grant under the Colonial Probates Acts 1892 and 1927[^f00003];

• “gross value” in relation to any estate means the value of the estate without deduction for debts, incumbrances, funeral expenses or inheritance tax (or other capital tax payable out of the estate);

• “judge” means a judge of the High Court;

• “personal applicant” means a person other than a trust corporation who seeks to obtain a grant without employing a solicitor or probate practitioner, and “personal application” has a corresponding meaning;

• “probate practitioner” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes a probate activity (within the meaning of that Act);

• “online portal” means the online portal established by Her Majesty’s Courts and Tribunals Service for the making of online applications under rules 4 (Applications for grants through solicitors or probate practitioners), 5ZA (online procedure for personal applications) , 5A (alternative online procedure for personal applications) or 36 (grants to trust corporations and other corporate bodies);

• “registrar” means the district probate registrar of the district probate registry–to which an application for a grant is made or is proposed to be made,in rules 26, 40, 41 and 61(2), from which the grant issued, andin rules 46, 47 and 48, from which the citation has issued or is proposed to be issued;

• “registry” means the Principal Registry or a district probate registry;

• “the senior district judge” means the Senior District Judge of the Family Division or, in his absence, the senior of the district judges in attendance at the Principal Registry;

• “statement of truth” means a statement ... confirming the truthfulness of statements made in the application and the true nature of any documents served in support of the application;

• ...

• ...

• “the Treasury Solicitor” means the solicitor for the affairs of Her Majesty’s Treasury and includes the solicitor for the affairs of the Duchy of Lancaster and the solicitor of the Duchy of Cornwall;

• “trust corporation” means a corporation within the meaning of section 128 of the Act as extended by section 3 of the Law of Property (Amendment) Act 1926[^f00005].

• “witness statement” means a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

• (2) A form referred to by number means the form so numbered in the First Schedule; and such forms shall be used wherever applicable, with such variation as a district judge or registrar may in any particular case direct or approve.

Application of other rules

3

• (1) Subject to the provisions of these rules and to any enactment, the Rules of the Supreme Court 1965 as they were in force immediately before 26th April 1999 shall apply, with any necessary modifications to non-contentious probate matters, and any reference in these rules to those rules shall be construed accordingly.

• (2) Nothing in Order 3 of the Rules of the Supreme Court shall prevent time from running in the Long Vacation.

Application for grants through solicitors or probate practitioners

4

• (1) A person applying for a grant through a solicitor or probate practitioner, other than a grant listed in the Third Schedule, must apply using the online portal, unless invited to apply at a registry by that registry.

• (2) A person applying through a solicitor or probate practitioner for a grant listed in the Third Schedule may apply either using the online portal, in accordance with instructions given through the online portal, or at any registry.

• (3) An application using the online portal must be made in accordance with instructions given through the online portal, by completing and sending the online application form provided through the online portal and electronically paying the appropriate fee.

• (4) Where original documents are required to be sent in support of an application using the online portal, these must be sent separately to the registry in accordance with instructions given through the online portal.

• (5) Every solicitor and probate practitioner through whom an application for a grant is made must give the address of their place of business within England and Wales or Scotland.

Personal applications

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• (1) A personal applicant may apply for a grant at any registry or sub-registry.

• (2) Save as provided for by rule 39 a personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.

• (3) No personal application shall be proceeded with if—

• (a) it becomes necessary to bring the matter before the court by action or summons , unless a judge, district judge or registrar so permits;

• (b) an application has already been made by a solicitor or probate practitioner on behalf of the applicant and has not been withdrawn; or

• (c) the district judge or registrar so directs.

• (4) After a will has been deposited in a registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the district judge or registrar so directs.

• (5) A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as required by instructions given by the registry or as the district judge or registrar may approve.

• (6) A personal applicant shall supply all information necessary to enable the papers leading to the grant to be prepared as required by instructions given by the registry.

• (7) Unless the district judge or registrar otherwise directs, every ... affidavit required on a personal application shall be sworn or executed by all the deponents before an authorised officer.

• (8) No legal advice shall be given to a personal applicant by an officer of a registry and every such officer shall be responsible only for embodying in proper form the applicant’s instructions for the grant.

• (9) In any case where an application is made under rule 5ZA (online procedure for personal applications), this rule applies with the exceptions and modifications provided for by that rule.

• (10) In any case where an application is made under rule 5A (alternative online procedure for personal applications), this rule applies with the exceptions and modifications provided for by that rule.

Duty of registrar on receiving application for grant

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• (1) A district judge or registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.

• (2) Except with the leave of a district judge or registrar, no grant of probate or of administration with the will annexed shall issue within seven days of the death of the deceased and no grant of administration shall issue within fourteen days thereof.

Grants by district probate registrars

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• (1) No grant shall be made by a ... registrar—

• (a) in any case in which there is contention, until the contention is disposed of; or

• (b) in any case in which it appears to him that a grant ought not to be made without the directions of a judge or a district judge.

• (2) In any case in which paragraph (1)(b) applies, the ... registrar shall send a statement of the matter in question to the Principal Registry for directions.

• (3) A district judge may either confirm that the matter be referred to a judge and give directions accordingly or may direct the ... to proceed with the matter in accordance with such instructions as are deemed necessary, which may include a direction to take no further action in relation to the matter.

Oath in support of grant

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• (1) Every application for a grant other than one to which rule 39 applies shall be supported by—

• (a) a statement of truth; and

• (b) such other papers,

as required by the district judge, registrar or instructions given through the online portal.

• (2) Unless otherwise directed by a district judge or registrar, the applicant must state in the application where the deceased died domiciled.

• (3) Where the deceased died on or after 1st January 1926, the applicant must state in the application whether or not, to the best of the applicant’s knowledge, information and belief, there was land vested in the deceased which was settled previously to his death and not by his will and which remained settled land notwithstanding his death.

• (4) On an application for a grant of administration the applicant must state in the application in what manner all persons having a prior right to a grant have been cleared off and whether any minority or life interest arises under the will or intestacy.

Grant in additional name

9

Where it is sought to describe the deceased in a grant by some name in addition to his true name, the applicant must state in the application the true name of the deceased and shall specify some part of the estate which was held in the other name, or give any other reason for the inclusion of the other name in the grant.

Marking of wills

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• (1) Subject to paragraph (2) below, every will in respect of which an application for a grant is made—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) shall be exhibited to any affidavit or witness statement which may be required under these Rules as to the validity, terms, condition or date of execution of the will.

• (2) The district judge or registrar may allow a facsimile copy of a will to be ... exhibited in lieu of the original document.

Engrossments for purposes of record

11

• (1) Where the district judge or registrar considers that in any particular case a facsimile copy of the original will would not be satisfactory for purposes of record, he may require an engrossment suitable for facsimile reproduction to be lodged.

• (2) Where a will—

• (a) contains alterations which are not to be admitted to proof; or

• (b) has been ordered to be rectified by virtue of section 20(1) of the Administration of Justice Act 1982[^f00007],

there shall be lodged an engrossment of the will in the form in which it is to be proved.

• (3) Any engrossment lodged under this rule shall reproduce the punctuation, spacing and division into paragraphs of the will and shall follow continuously from page to page on both sides of the paper.

Evidence as to due execution of will

12

• (1) Subject to paragraphs (2) and (3) below, where a will contains no attestation clause or the attestation clause is insufficient, or where it appears to the district judge or registrar that there is doubt about the due execution of the will, he shall before admitting it to proof require an affidavit or a witness statement as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present when the will was executed; and if the district judge orregistrar, after considering the evidence, is satisfied that the will was not duly executed, he shall refuse probate and mark the will accordingly.

• (2) If no affidavit or witness statement can be obtained in accordance with paragraph (1) above, the district judge or registrar may accept evidence on affidavit or by a witness statement from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of due execution of the will, and may if he thinks fit require that notice of the application be given to any person who may be prejudiced by the will.

• (3) A district judge or registrar may accept a will for proof without evidence as aforesaid if he is satisfied that the distribution of the estate is not thereby affected.

Execution of will of blind or illiterate testator

13

Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason raises doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the district judge or registrar shall satisfy himself that the testator had such knowledge.

Evidence as to terms, condition and date of execution of will

14

• (1) Subject to paragraph (2) below, where there appears in a will any obliteration, interlineation, or other alteration which is not authenticated in the manner prescribed by section 21 of the Wills Act 1837[^f00008], or by the re-execution of the will or by the execution of a codicil, the district judge or registrar shall require evidence to show whether the alteration was present at the time the will was executed and shall give directions as to the form in which the will is to be proved.

• (2) The provisions of paragraph (1) above shall not apply to any alteration which appears to the district judge or registrar to be of no practical importance.

• (3) If a will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the district judge or registrar shall require the document to be produced and may call for such evidence in regard to the incorporation of the document as he may think fit.

• (4) Where there is a doubt as to the date on which a will was executed, the district judge or registrar may require such evidence as he thinks necessary to establish the date.

Attempted revocation of will

15

Any appearance of attempted revocation of a will by burning, tearing, or otherwise destroying and every other circumstance leading to a presumption of revocation by the testator, shall be accounted for to the district judge’s or registrar’s satisfaction.

Affidavit as to due execution, terms, etc., of will

16

A district judge or registrar may require an affidavit or a witness statement from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 13, 14 and 15, and in any such affidavit sworn or witness statement made by an attesting witness or other person present at the time of the execution of a will the deponent must depose to, or the maker of the witness statement must give evidence of, the manner in which the will was executed.

Wills proved otherwise than under section 9 of the Wills Act 1837

17

• (1) Rules 12 to 15 shall apply only to a will that is to be established by reference to section 9 of the Wills Act 1837 (signing and attestation of wills).

• (2) A will that is to be established otherwise than as described in paragraph (1) of this rule may be so established upon the district judge or registrar being satisfied as to its terms and validity, and includes (without prejudice to the generality of the foregoing)—

• (a) any will to which rule 18 applies; and

• (b) any will which, by virtue of the Wills Act 1963[^f00009], is to be treated as properly executed if executed according to the internal law of the territory or state referred to in section 1 of that Act.

Wills of persons on military service and seamen

18

Where the deceased died domiciled in England and Wales and it appears to the district judge or registrar that there is prima facie evidence that a will is one to which section 11 of the Wills Act 1837 applies, the will may be admitted to proof if the district judge or registrar is satisfied that it was signed by the testator or, if unsigned, that it is in the testator’s handwriting.

Evidence of foreign law

19

Where evidence as to the law of any country or territory outside England and Wales is required on any application for a grant, the district judge or registrar may accept—

• (a) an affidavit or a witness statement from any person whom, having regard to the particulars of his knowledge or experience given in the affidavit or in the witness statement, he regards as suitably qualified to give expert evidence of the law in question; or

• (b) a certificate by, or an act before, a notary practising in the country or territory concerned.

Order of priority for grant where deceased left a will

20

Where the deceased died on or after 1 January 1926 the person or persons entitled to a grant in respect of a will shall be determined in accordance with the following order of priority, namely—

• (a) the executor (but subject to rule 36(4)(d) below);

• (b) any residuary legatee or devisee holding in trust for any other person;

• (c) any other residuary legatee or devisee (including one for life) or where the residue is not wholly disposed of by the will, any person entitled to share in the undisposed of residue (including the Treasury Solicitor when claiming bona vacantia on behalf of the Crown), provided that—

• (i) unless a district judge or registrar otherwise directs, a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency, and