Most Probate applications proceed without the necessity of a court application. However, in certain cases application must be made to the court.
The following are the most common such instances:
• Application for a grant under section 27(4) of the Succession Act, 1965
• Applications to admit a copy will or reconstructed will to probate where the original will has been lost
• Where there are rival applications for a grant of administration
• Application for a grant limited for a particular purpose or for a fixed period of time or to a particular part of the estate
• To assign a bond under section 34(4) of the Succession Act, 1965
• To admit a will to proof in cases where there is doubt as to due execution.
Such applications are heard by the probate judge sitting in open court on Mondays during court sittings. Applications may be made either ex parte (that is, without notice to any other party), or on notice, and are brought by either a motion paper or notice of motion grounded on an affidavit or affidavits. The Probate Office provides no guidance on Court Applications. Please instruct a Solicitor if you need legal advice.
Applications to the probate court
Applications to the Probate Judge are issued through the Rules Office of the Probate Office, Phoenix House, Smithfield, Dublin 7.
This can be done by attending in person (or by your town agent) at the Rules Office or by submitting your application by post. For postal applications, a completed Form PAS2 must accompany your application.
More information on postal applications is available on the postal applications section.
Each application is brought either by way of notice of motion, motion paper or ex parte application, and all are grounded on affidavit(s) which set out the specific circumstances and proofs necessary in each case.
Where lay parties need to be served, the notice of motion is the appropriate document to use. When issuing same, it is important that four clear days notice be allowed to the notice party in question.
A motion paper is used where a solicitor is being served. In this instance two clear days notice must be allowed.
An ex parte application is used when no one needs to be put on notice.
Applying for a court date
When issuing an application for the probate list, the following documents must be presented:
• Original notice of motion or motion paper or ex parte application and copy of same.
• Original affidavits and copies of same.
• An indexed, bound and paginated booklet of copies of all the foregoing documentation including copy exhibits. Please do not submit original exhibits to the Probate Office.
Fees are payable on the notice and the affidavits.
The Rules Office will indicate the next available date in the probate list and will issue the application in question for such date.
For court applications received by post, the copy motion (with a return date entered thereon) will be returned to you by post, together with stamped copy affidavits (if relevant).
The probate court list
The probate list is held on each Monday during term at 10.30 a.m. and is presided over by the probate judge - currently Mr. Justice Binchy.
The probate judge reads all applications in advance of the probate sitting. To facilitate same, all papers which form part of the probate list are transmitted to him on the Wednesday evening prior to the Monday on which the case is listed for hearing.
Consequently, all supplemental affidavits and all replying affidavits to the application should be lodged with the Probate Office no later than close of business on the said Wednesday.
Arrange to have all original exhibits in court on said Monday. It is the policy of the Probate Office never to retain original exhibits either prior to or subsequent to the court hearing.
All orders made by the probate court are available by close of business on the Tuesday of the week on which they are made. There is a fee payable on collection of court orders.
Order proving the will in terms of a copy
If your application to the court is for liberty to prove a will in terms of a copy, and the court allows the relief sought, the actual copy of the will which you have exhibited in your grounding affidavit is the copy which you must exhibit in your oath for executor/administrator with will annexed.
Exhibiting court orders in the will
When a court order has been obtained and an application for a grant of representation is subsequently being prepared for presentation to the Seat Office of the Probate Office or a District ProbateRegistry, an official copy of the court order must be exhibited in your oath of executor/administrator with will annexed/administrator.
________________________Content reviewed: July 2018