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13 April 2022

Probate Practice Update


1.         Applications to Admit Copies of Wills

Members are asked to note that when making an application for an order admitting to proof a will contained in a copy or otherwise, pursuant to Order 97 Rule 53, the application should include evidence that the applicant has put on notice any interested parties who might benefit in the event of an intestacy or be otherwise prejudiced by the resulting Grant.

This procedural requirement applies in all such cases where the original will is not available, including those where it is understood that the original will has been lost.

Where the applicant fails to give notice or to include evidence of notice being given with their application, their application will typically not proceed and require to be adjourned.

Members are further referred to Order 97, Rule 53 of the Rules of the Court of Judicature (NI) 1980 in this regard. The Rules are available from Department of Justice website,https://www.justice-ni.gov.uk/publications/court-rules-publications, or by clicking  here.

2.         Practice Note 2021/1 on Fees for Solicitor Executors

Members are reminded of Practice Note 2021/1 issued by the Society’s Non Contentious Business Committee.

Practice Note 2021/1 provides guidance for members in relation to the issue of the charging and agreement of professional fees by a solicitor in an estate where that solicitor is also acting as the sole executor (therein called the “Solicitor-Executor”).

The guidance sets out actions to be taken by a Solicitor-Executor in every case.

It also includes additional considerations that arise in the event that the Solicitor-Executor is aware or ought reasonably to be aware that any residuary beneficiary is a vulnerable person and/or may be unaware of appropriate charging rates.

Practice Note 2021/1 can be accessed by logging into the members section of the Society’s website and clicking here.

The guidance extends to all estates where a Solicitor-Executor has control as executor and includes estates where more than one solicitor or principal in a solicitor’s practice is appointed as an executor regardless of the business structure of the practice or if the Solicitor-Executor is a trustee company owned or controlled by such a solicitor or solicitor’s practice.

Members should note that the Society will consider whether a solicitor has complied with the guidance in any relevant matter before the Society concerning the professional practice or conduct of a Solicitor-Executor. 

3.         Consolidated Probate Practice Direction (2021)

Members are reminded of Probate Practice Direction 3/2021 which consolidates and updates the Probate Practice Directions and Practice Guidance Notes with effect from 1st November 2021.

It also addresses applications for grants made using the NI Direct online portal at Probate Online NI.

Probate Practice Direction 3/2021 can be accessed  online at -  https://www.judiciaryni.uk/judicial-decisions/practice-direction-0321



Documents

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