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Probate officer's orders

In certain circumstances it may be necessary to obtain a probate officer’s order in relation to a grant of representation which you propose to lodge (or in relation to a grant which has already issued).

Applications for probate officer’s orders should be lodged in the Dublin Probate Office. If attending in person, the application should be lodged in the Rules Office of the Probate Office. For postal applications, ensure your application is accompanied by the postal applications. Normally, orders will be made within 1 to 2 weeks of receipt of the application.

If you are applying for the grant through one of the district probate registries, you may lodge the probate officer’s order application in the relevant registry, who will forward the application to the Dublin Probate Office for consideration by the Probate Officer.

There is a fee payable in respect of probate officer’s orders. There are also fees payable in respect of affidavits being filed. Ensure you submit the relevant fee with your application, as failure to do so will result in delays.

Set out below are the most common types of probate officer’s orders:

Committee order.

Where the person entitled to extract the grant is of unsound mind and is not a ward of court, it may be possible to issue a grant to a committee for the use and benefit of the person of unsound mind and during his/her incapacity. It is necessary to obtain a probate officer’s order in this situation pursuant to Order 79 Rules 26/27 of the Superior Court Rules

Note: a person who is of full capacity and is equally entitled to a grant with a person of unsound mind is entitled to extract the grant in priority to the committee of such person (Order 79, Rule 5(9)(c)). The Probate Officer does have discretion to set aside this priority if he/she deems it appropriate in the circumstances of the case.

Proofs required (to be lodged in the Probate Office):

  1. affidavit from the proposed committee setting out the facts i.e. name, address, date of death of deceased, entitlement of person of unsound mind to grant, domicile of person of unsound mind, no other person equally entitled to grant, assets within the jurisdiction and request for order appointing him committee.
    (If the executor is incapacitated the appropriate committee is the residuary legatee and devisee; If the person entitled to administration is incapacitated, the appropriate Committee is his/her next of kin; If the residuary legatee and devisee is incapacitated, the appropriate Committee is his/her next of kin.)
  2. affidavit from a doctor giving evidence of the person’s mental incapacity.
  3. letter of consent from the Office of Wards of Court (i.e. you must write to the Office of Wards of Court first and inform them of your intentions and ask them to provide you with a letter of consent).
  4. fees

Where a person entitled to extract a grant is already a ward of court, a letter of consent must be obtained from the Registrar of Wards of Court allowing the committee already appointed to proceed with the application for a grant.

Guardian order.

Where the person entitled to extract a grant is a minor and where the minor doe s not have a testamentary guardian or where a guardian has not been appointed by the court, it is possible to obtain a probate officer’s order appointing a person as guardian of the minor for the purpose of extracting a grant in the estate.

The most commonly appointed guardians would be the natural mother or father of the minor. The grant that issues is limited for the use and benefit of the said minor.

Proofs required (to be lodged in the Probate Office):

  1. petition from proposed guardian (see Probate Practice in a Nutshell by Eamonn G. Mongey, page 109 for precedent)
  2. election may be required (where the child is over 12 years and someone other than the parent is the applicant)
  3. proof of parentage may be required (long form birth certificate is required or a declaration of parentage where the father’s name is not on the birth certificate)
  4. fees
Relevant legislation/rules:

Order 79 Rule 24 & 25; Rules of the Superior Courts Appendix Q, Form 17.

Note: where a guardian is already appointed the foregoing application must be also made to allow the already assigned guardian to proceed with the application.

Order limiting grant to immoveable or moveable estate.

Where the deceased had a foreign domicile at the date of death and where the person entitled to apply for the grant under Irish law is not the person entitled under the law of domicile, it may be necessary to apply for one of these orders.

More information on this topic see the foreign domicile section.

Proofs required (to be lodged in the Probate Office):

  1. letter requesting grant to be limited
  2. full revenue affidavit
  3. affidavit of law or sealed and certified copy foreign grant may also be required
  4. fees

The order limited to the moveable estate is relevant where the applicant shows title under law of domicile (but not under Irish law) and where there are only moveable assets in this jurisdiction.

The order limited to the immoveable estate is relevant where the applicant shows title under Irish law (but not under the law of domicile) and where there are only immoveable assets in this jurisdiction.

Relevant legislation/rules:

Order 79 Rule 5(8)(a) and (b)

Order incorporating a map or list.

Where a will refers to some other document such as a map or list and if the will cannot be read without reference to this document, then a probate officer’s order is required to incorporate the map/list.

The grant that issues will refer to this document as being incorporated and the original or copy of same will be included in the grant in the same manner that the will is.

Proofs required (to be lodged in the Probate Office):

  1. grounding affidavit from the applicant setting out the facts of the case
  2. affidavit of attesting witness. There are three essential requirements for incorporation and the affidavit of attesting witness must cover these:

The map or list or document -
a. must have been in actual existence at the time of execution of the will
b. must be referred to in the will as being in existence
c. must be clearly identified
d. fees

Relevant legislation/rules:

Order 79, Rules 13 & 14

Unaltered text order.

If amendments were made to a will after execution, then it may be necessary to obtain a probate officer’s order giving liberty to prove the will in terms of it s original unaltered text.

Proofs required (to be lodged in the Probate Office):

  1. the original will
  2. affidavits of attesting witnesses (from both witnesses)
  3. a prepared copy of the will in its original unaltered text
  4. fees


When the probate officer’s order is made, the copy will in its unaltered text should be certified by the solicitors as being in accordance with the order of the Probate Officer. This copy should then be exhibited to the oath and the original will should be lodged with the application.

When the grant issues, a copy of the 'unaltered text' version will be attached.

Revoke and cancel order.

In certain circumstances it may benecessary to seek a probate officer’s order to revoke (or revoke and cancel) a grant of representation which has already issued. In certain circumstances, the court must make this order (e.g. where the grant was obtained by fraud or where the validity of the will is challenged). However in all other cases the grant may be revoked by probate officer’s order.

Mongey, page 49 sets out circumstances in which a grant must be revoked.

The application should be made by the grantee (or with the grantee’s consent).

Proofs required (to be lodged in the Probate Office):

  1. affidavit exhibiting necessary documents
  2. original grant
  3. fees

Rival application (21 day order).

This arises in intestacy cases where there are two applications from parties with an equal entitlement to a grant. In these circumstances, where the Probate Officer is called upon to exercise his/her discretion under the relevant rule, the Probate Officer may make an order allowing one applicant to proceed but only where there are no objections received. If objections are received, then a court application will be necessary.

Proofs required (to be lodged in the Probate Office):

  1. affidavit from the solicitor for the moving party (setting out the facts, the right of the applicant and details of the rival application and requesting a 21 day order)
  2. fees

If the application is in order, the Probate Officer will make a 21 day order which must then be served on the rival applicant. It can be served personally, but is usually served by registered post.

If objections are received within the 21 day period, the applicant will have to apply to court to progress the matter.

If no objections are received within the 21 day period, the Probate Officer will make a further order allowing the applicant to proceed. In order to obtain this order, an affidavit of service must be filed in the first instance.

Relevant legislation/rules:

Order 79 Rule 5(3)

Proving a will in terms of a translation order.

Wills in any language other than the Irish or English languages.

Order 79 Rule 5 (10) gives authority to the Probate Office to admit such wills to proof in terms of a translation thereof.

Prior to lodging a substantive application in the Probate Seat Office, a preliminary order must be obtained from the Probate Officer admitting the will to proof in terms of a translation. This order is applied for through the Probate Rules Office.

The Probate Office must be satisfied that the will being presented for proof complies with section 102 of the Succession Act 1965 and that the person who seeks to prove same is the person entitled both under the law of domicile and the lex situs where the deceased died possessed of both immoveable and moveable estate in this jurisdiction.

Where the deceased dies possessed of only moveable estate within this jurisdiction, the Probate Office must be satisfied that the person applying for the grant is the person entitled under the law of domicile of the deceased as at the date of death. Where there is only immoveable estate in this jurisdiction the lex situs will apply (i.e Irish law).

The Probate Office must also be satisfied as to the accuracy of the translation.

Proofs required:

1. Grounding Affidavit from the applicant or a solicitor with carriage of the case setting out all the facts of the estate, exhibiting all relevant documentation and identifying the order being sought in the matter.

2. Affidavit of Law from an independent lawyer with expertise in succession law in the country of domicile of the deceased:

(a) setting out full facts of the case including the domicile at death of the deceased,

(b) exhibiting all the relevant documents i.e. death certificate, and

(i) the original will if it has not been proved in the country of domicile or

(ii) if the will is made in a notary’s office and the convention is for the notary to retain possession of the original in his/her office, state same and provide a copy of the will which must be sealed and a certified copy by the notary in question, or

(iii) if the will has been proved in the country of domicile, a sealed and certified copy of the will and grant of representation - (note that the court office from which the grant issued must seal and certify the documents)

(iv) the translations of all documents by a legal translator (see below)

(c) quoting the piece of legislation which determines the validity of the will (recite the full relevant section which sets out the requirements for such validity)

(d) quoting the legislation which determines the entitlement of the person who is proposing to apply for the grant *

(e) where the probate system in the country of domicile is different in approach to the Irish system in terms of proving of the will and administration of the estate, giving a full account of how the administration of estates is dealt with and how the administrator obtains legal authority to administer the estate

(f) securing an Apostille where appropriate (i.e. where the will has not been proved in the country of domicile).

* where a grant has already been extracted in the country of domicile by an executor and the executor has since died and a second grant has not been extracted in the country of domicile, the lawyer must clarify who would be entitled to extract this second grant if one was necessary in the country of domicile

3. Affidavit of Translator

This affidavit must be made by an official translator of legal documents and the credentials of the translator must be indicated in the affidavit. It must be made by the actual translator who translates the document.

The translator must first exhibit

(i) either the original will or

(ii) a sealed and certified copy of the original will from the notary before which it was made or

(iii) if the will has been proved in the country of domicile a sealed and certified copy from the court/office in which it was proved

(iv) all other official documents relating to the estate

Note that exhibiting of plain copies of these documents will not be accepted

(v) He/she must then exhibit the translation of same and the translation of the grant and affidavit of law if applicable.

He/she must swear that he/she has prepared the translations in question and that the said translations are true and accurate copies of the documents in the foreign language.

4. Fees

Fees for Probate Officer’s Order (and fees on affidavits) are required.

All of above must first be submitted to the Probate Officer for consideration before any further documents are completed for an application for a grant.

Relevant legislation/rules:

Order 79 Rule 5 (10)

 
 
 
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Content reviewed: May 2017