Made | 30th March 2001 | ||
Laid before Parliament | 6th April 2001 | ||
Coming into force in accordance with rule 1 |
2.
In these Rules -
Amendments to the Civil Procedure Rules 1998
3.
After paragraph (e) of rule 6.18, insert -
4.
In rule 6.20(18), after "claim" insert "is".
5.
In rule 6.24(1) -
6.
In rule 6.25 -
(b) after paragraph (4), insert -
7.
After paragraph (6) of rule 6.26, insert -
8.
After rule 6.26, insert -
(4) Rule 6.31 does not apply.
9.
In rule 12.3, after the cross-reference at the end of that rule, insert -
10.
In rule 13.3, after the cross-reference, insert -
11.
In rule 22.1, in paragraph (1) -
12.
After rule 39.7, insert -
(b) permit a claimant or representative to make a statement to the court before the start of the proceedings (or part of the proceedings) from which he is to be excluded; or
(c) take steps to keep secret all or part of the reasons for its decision in the claim.
(Section 67A(2) of the Race Relations Act 1976 provides that the Attorney General may appoint a person to represent the interests of a claimant in any proceedings from which he and his representatives are excluded)".
13.
In Part 49 -
14.
After Part 56, insert Part 57 (Probate) as set out in the Schedule to these Rules.
15.
RSC Order 93, rule 20 is revoked.
16.
In RSC Order 115 -
(iv) at the beginning of paragraph (c), insert "other"; and
(v) in paragraph (c), for "Part III of, and Schedule 4 to," substitute "Schedule 4 to";
(c) in rule 26(1), for "paragraphs 3 and 4" substitute "paragraph 5";
(d) in rule 26(2)(a), for "Part III" substitute "any of sections 15 to 18";
(e) in rule 27(2), after "a restraint order made without notice of" insert "the application for";
(f) in rule 29 -
(g) in rule 32(1), for "Crown Office" substitute "Administrative Court"; and
(h) in rule 35(3) -
17.
In CCR Order 48B -
(d) in rule 1(2) -
(b) where a longer period has been allowed pursuant to -
that period.";
(h) in rule 5(7) -
insert "or, as the case may be, paragraph 10(5) of Schedule 1 to the 1996 Act".
18.
In CCR Order 48D -
Transitional provisions
19.
Where a claim form -
that Part shall not apply to the proceedings, and the rules of court in force immediately before that date shall apply as if they had not been amended or revoked.
Phillips of Worth Matravers, M.R.
Andrew Morritt, V-C
Anthony May, L.J.
Richard Holman
Godfrey Gypps
John Leslie
Michael Black
David Foskett
Michelle Stevens-Hoare
David Greene
Peter Watson
Alan Street
I allow these Rules
Irvine of Lairg,
C.
Dated 30th March 2001
Scope of this Part and definitions | Rule 57.1 |
SECTION I - PROBATE CLAIMS | |
General | Rule 57.2 |
How to start a probate claim | Rule 57.3 |
Acknowledgment of service and defence | Rule 57.4 |
Lodging of testamentary documents and filing of evidence about testamentary documents | Rule 57.5 |
Revocation of existing grant | Rule 57.6 |
Contents of statement of case | Rule 57.7 |
Counterclaim | Rule 57.8 |
Probate counterclaim in other proceedings | Rule 57.9 |
Failure to acknowledge service or to file a defence | Rule 57.10 |
Discontinuance and dismissal | Rule 57.11 |
SECTION II - RECTIFICATION OF WILLS | Rule 57.12 |
SECTION III - SUBSTITUTION AND REMOVAL OF PERSONAL REPRESENTATIVES | Rule 57.13 |
(2) In this Part:
not being a claim which is non-contentious (or common form) probate business;
(Section 128 of the Supreme Court Act 1981[9] defines non-contentious (or common form) probate business.)
(c) "testamentary document" means a will, a draft of a will, written instructions for a will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed;
(d) "will" includes a codicil.
Acknowledgment of service and defence
57.4
- (1) A defendant who is served with a claim form must file an acknowledgment of service.
(2) Subject to paragraph (3), the period for filing an acknowledgment of service is -
(3) If the claim form is served out of the jurisdiction under rule 6.19, the period for filing an acknowledgment of service is 14 days longer than the relevant period specified in rule 6.22 or the practice direction supplementing Section 3 of Part 6.
(4) Rule 15(4) (which provides the period for filing a defence) applies as if the words "under Part 10" were omitted from rule 15.4(1)(b).
Lodging of testamentary documents and filing of evidence about testamentary documents
57.5
- (1) Any testamentary document of the deceased person in the possession or control of any party must be lodged with the court.
(2) Unless the court directs otherwise, the testamentary documents must be lodged in the relevant office -
(3) The claimant and every defendant who acknowledges service of the claim form must in written evidence -
(A specimen form for the written evidence about testamentary documents is annexed to the practice direction.)
(4) Unless the court directs otherwise, the written evidence required by paragraph (3) must be filed in the relevant office -
(5) Except with the permission of the court, a party shall not be allowed to inspect the testamentary documents or written evidence lodged or filed by any other party until he himself has lodged his testamentary documents and filed his evidence.
(6) The provisions of paragraphs (2) and (4) may be modified by a practice direction under this Part.
Revocation of existing grant
57.6
- (1) In a probate claim which seeks the revocation of a grant of probate or letters of administration every person who is entitled, or claims to be entitled, to administer the estate under that grant must be made a party to the claim.
(2) If the claimant is the person to whom the grant was made, he must lodge the probate or letters of administration in the relevant office when the claim form is issued.
(3) If a defendant has the probate or letters of administration under his control, he must lodge it in the relevant office when he acknowledges service.
(4) Paragraphs (2) and (3) do not apply where the grant has already been lodged at the court, which in this paragraph includes the Principal Registry of the Family Division or a district probate registry.
Contents of statements of case
57.7
- (1) The claim form must contain a statement of the nature of the interest of the claimant and of each defendant in the estate.
(2) If a party disputes another party's interest in the estate he must state this in his statement of case and set out his reasons.
(3) Any party who contends that at the time when a will was executed the testator did not know of and approve its contents must give particulars of the facts and matters relied on.
(4) Any party who wishes to contend that -
must set out the contention specifically and give particulars of the facts and matters relied on.
(5)
Counterclaim
57.8
- (1) A defendant who contends that he has any claim or is entitled to any remedy relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person must serve a counterclaim making that contention.
(2) If the claimant fails to serve particulars of claim within the time allowed, the defendant may, with the permission of the court, serve a counterclaim and the probate claim shall then proceed as if the counterclaim were the particulars of claim.
Probate counterclaim in other proceedings
57.9
- (1) In this rule "probate counterclaim" means a counterclaim in any claim other than a probate claim by which the defendant claims any such remedy as is mentioned in rule 57.1(2)(a).
(2) Subject to the following paragraphs of this rule, this Part shall apply with the necessary modifications to a probate counterclaim as it applies to a probate claim.
(3) A probate counterclaim must contain a statement of the nature of the interest of each of the parties in the estate of the deceased to which the probate counterclaim relates.
(4) Unless an application notice is issued within 7 days after the service of a probate counterclaim for an order under rule 3.1(2)(e) or 3.4 for the probate counterclaim to be dealt with in separate proceedings or to be struck out, and the application is granted, the court shall order the transfer of the proceedings to either -
(5) If an order is made that a probate counterclaim be dealt with in separate proceedings, the order shall order the transfer of the probate counterclaim as required under paragraph (4).
Failure to acknowledge service or to file a defence
57.10
- (1) A default judgment cannot be obtained in a probate claim and rule 10.2 and Part 12 do not apply.
(2) If any of several defendants fails to acknowledge service the claimant may -
proceed with the probate claim as if that defendant had acknowledged service.
(3) If no defendant acknowledges service or files a defence then, unless on the application of the claimant the court orders the claim to be discontinued, the claimant may, after the time for acknowledging service or for filing a defence (as the case may be) has expired, apply to the court for an order that the claim is to proceed to trial.
(4) When making an application under paragraph (3) the claimant must file written evidence of service of the claim form and (if no particulars of claim were contained in or served with the claim form) the particulars of claim on each of the defendants.
(5) Where the court makes an order under paragraph (3), it may direct that the claim be tried on written evidence.
Discontinuance and dismissal
57.11
- (1) Part 38 does not apply to probate claims.
(2) At any stage of a probate claim the court, on the application of the claimant or of any defendant who has acknowledged service, may order that -
57.12
- (1) This Section contains rules about claims for the rectification of a will.
(Section 20 of the Administration of Justice Act 1982[10] provides for rectification of a will. Additional provisions are contained in rule 55 of the Non-Contentious Probate Rules 1987[11].)
(2) Every personal representative of the estate shall be joined as a party.
(3) The practice direction makes provision for lodging the grant of probate or letters of administration with the will annexed in a claim under this Section.
[2] S.I. 1998/3132 as amended by S.I. 1999/1008, S.I. 2000/221, S.I. 2000/940, S.I. 2000/1317, S.I. 2000/2092 and S.I. 2001/256.back
[5] The London Local Authorities Act 1996 (c.ix); paragraph 8 of Schedule 1 was amended by paragraph 7 of Schedule 2 to the London Local Authorities Act 2000 (c.vii) and Schedule 1 is repealed by Schedule 31 to the Transport Act 2000 (c.38) on such day as the Secretary of State may by order provide.back
[6] The Road Traffic Act 1991 (c.40).back
[7] 1991 c.40; section 73 was amended by the Greater London Authority Act 1999 (c.29), section 283 and Schedule 34, Part VI.back
[8] 1991 c.40; the definition of "London authority" is substituted by the Greater London Authority Act 1999 (c.29), section 287(2).back
[11] S.I. 1987/2024 as amended by S.I. 1991/1876, S.I. 1998/1903 and 1999/1015.back