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NORMAN MANLEY LAW SCHOOL

PROBATE PRACTICE AND PROCEDURE

CONTENTIOUS PROBATE

LAWS, RULES AND TREATISES

Hay, Beresford: An Introduction to the Law of Succession – Chapter 18


pp. 93-97 (“CAVEATS AND CITATIONS”), Ch. 19 pp. 98-111
(“CONTENTIOUS BUSINESS: PROBATE ACTIONS, PRACTICE,
COSTS”)

Hay, Beresford: Probate Practice In Jamaica (2008 – complementary to


“An Introduction to the Law of Succession”) Ch. 10 pp. 29-35
(“CAUTIONS AND CITATIONS”); Section 2 Ch. 11 pp. 35-43
(“CONTENTIOUS PROBATE PROCEEDINGS”). APPENDIX 2 PP. 55-
57 (“SUMMARY OF A PROBATE CLAIM”).

Tristram & Coote’s Probate Practice (27th edn) PART II Chap. 26 p.567 et
seq.

Chap 27 p. 574 (proof in solemn form; revocation of grants etc.)

Chap. 28 p. 584 (parties to actions)

Chap. 35 p. 635 (Defence and Counter-claim)

Tristram & Coote’s Probate Practice (30th edn) PART II Chap. 26 p.759 et
seq.

Chap 27 pp. 765-773 (proof in solemn form; revocation of grants etc.)

Chap. 28 pp. 774-780 (parties to claims)

Chap. 31 pp.783-786 (testamentary documents)

Chap. 33 pp. 790-809 (Particulars of Claim)


Chap. 34 pp. 810-843 (Defence and Counter-claim)

Chap. 38 pp.857- 863 (Interim Applications)

Chap. 40 pp.870- 881 (Costs)

Mellows: The Law of Succession (5th edn.) Chap. 20 p. 302 et seq.

Parry & Kerridge: The Law of Succession (12th edn.) Ch. 18 pp. 427-428
(Revocation of a grant in common form); Ch. 18 pp. 427-429 (Proof of a
Will in solemn form).; Chap. 19 pp.449-451 (“Caveats and Citations”); pp.
466-471 (“The Revocation of Grants”); Ch. 25 pp. 607-619
(“Administration Proceedings”).

Sawyer, Caroline: Principles of Succession, Wills & Probate (2nd edn.) Ch.
12 pp. 279-281

TABLE OF STATUTES

ANTIGUA AND BARBUDA:

Eastern Caribbean Supreme Court (Antigua) Act


Supreme Court Rules of procedure

BELIZE:
Supreme Court of Judicature Ordinances

Rules of Court

JAMAICA:

Judicature (Resident Magistrates) Act and Rules thereunder

The Judicature (Supreme Court) Act

Civil Procedure Rules, 2002 (especially Part 68).

ST.CHRISTOPHER & NEVIS:

Eastern Caribbean Supreme Court of


Judicature (St. Kitts & Nevis) Act.
Supreme Court Rules.

ST.VINCENT & THE GRENADINES:

Eastern Caribbean Supreme Court of


Judicature (St. Vincent & The
Grenadines) Act.

Supreme Court Rules.

1. Definition of Contentious Probate – Generally speaking, the term


“Contentious Probate” (“CP”) covers estate business or matters which
are not “common form” or “non-contentious” in nature. Often used is
the alternative “Contentious Business” which generally refers to a
court claim or suit for the grant of probate of a Will or Codicil, the
pronouncement against such Will or Codicil and for the revocation of
a grant of representation.

2. CP applies to the following claims or matters before the courts:

(a) PROOF IN SOLEMN FORM - issues of testacy or intestacy and


proof in solemn form (for example, is a particular Will or Codicil
valid? OR Which of two Wills/Codicils is valid? OR, alternatively,
did the deceased die intestate?

See Goddard v. Jack (1959) 1 WIR 169 (appeal to the Federal


Supreme Court; Trinidad & Tobago; executor propounded Will
under which he was named principal beneficiary; probate opposed
for want of testamentary capacity);

Re Bayley (1959) 2 WIR 9 (testator made six wills; mental


capacity challenged; Field, CJ (Ag) in Barbados Supreme Court
held that the petitioner failed to discharge the onus of proof
regarding capacity);

Alvarez v. Chandler (1962) 5 WIR 226 (CA T&T; 1935 and 1940
Wills; probate in common form of 1935 document; probate in
solemn form sought of 1940 one; challenge to 100 year-old
testatrix’s capacity)

Re Browne (1963) 5 WIR 505 (Field, J sitting in Barbados High


Court granted probate of Will dated January 1961 due to the
suspicious circumstances surrounding later Will of April, 1961);

Acosta v. Longsworth (1964) Bz L.R. 359 (PC on appeal from


Supreme Court of British Honduras; action against the
administrators of deceased’s estate to revoke 1918 Will and
pronounce for 1955 one);

Davis v. Davis (1969) 14 WIR 141 (CA of West Indies Associated


States – validity of Will challenged in counterclaim);

Bankay and others v Sukhdeo (1973) 24 WIR 9 (deceased left


three testamentary instruments; proof in solemn form sought of the
last; CA of Guyana);

In the Goods of Clyde DeFour, Panton & Anor. v. Defour &


Anor. Action No. 20 of 1978 (Cotran CJ, Belize Supreme Court –
7th March, 1990; propounders of Will failed to discharge the onus
of removing suspicion; probate declined; deceased declared to
have died intestate; this decision was upheld by the Court of
Appeal of Belize CA # 1of 1990, judgment delivered 27th
September, 1990)

(b) CHALLENGE TO STATUS - challenges to the entitlement or


status of any beneficiary, creditor or personal representative;

(c) CAVEAT/CAUTION - the filing of a caveat or caution which is a


notice to the Court/registrar not to issue or seal a grant of
representation without first giving notice of such intention to the
person (caveator/cautioner) lodging it.

(d) REVOCATION OF GRANTS - those involving applications to


revoke a grant of representation (probate, letters of administration
with the will annexed or letters of administration simpliciter) on
whatever basis. For example, the grantee is now incapacitated or
senile.
See Ravenscroft v. Ravenscroft (1671) 1 Lev 305 (persons
entitled in priority to the grantee were not properly cleared-off
prior to the issuance of the grant);

In The Goods of Napier (1809) 1 Phill 83 (where the deceased


himself made the application to revoke the grant, the grantee
erroneously thinking he had died on the field of battle!!);

In The Goods of More (1845) 3 NC 601 (applicant erroneously


claimed to be the deceased’s widow);

Pearl Clarke v Vivian Beckford (1993) 30 JLR 208 (CA of


Jamaica; action to revoke grant of letters of administration and to
propound Will; court refused to allow reliance on testatrix’s
alleged illiteracy as it had not been pleaded);

Wallace & Lemard v. Ramsay & Box SCCA No. 127/98 delivered
Nov. 29, 1999 (CA of Jamaica; application to set aside Letters of
Administration previously granted and for grant of probate in
solemn form; whether the evidence of witness may be given via
video link); and

Wallace v. Brown & Morrison [2012] JM SC Civ. 78 (Claim filed


seeking the revocation of a grant of Letters of Administration
allegedly fraudulently obtained).

(e) FAMILY PROVISION - for example a child or spouse of the


deceased bringing an action for a greater share of the estate;

NB: Not all matters in court are “contentious”. The nature of the approach
by the interested parties is instructive in determining whether the matter is
contentious.

3. COMMENCEMENT OF PROBATE ACTION - A CP claim is


usually begun by the filing of a Writ of Summons or, since the advent
of the Civil Procedure Rules, by a Fixed Date Claim Form. Salter v.
Salter [1896] P. 291.

4. The commencement of a probate action usually operates to prevent


the issuance or sealing of a grant of representation. An interim grant
which is an exception to this principle is a grant of administration
pending suit (pendente lite).

5. LOCUS STANDI – It must be remembered that locus standi is a


crucial prerequisite before the claim can be brought. The following
persons have locus standi:

(a) PERSONAL REPRESENTATIVES –

Executors – They get their locus standi through the Will and /or
Codicil. It must be noted that any testamentary document through
which they claim must be probated in order to obviate a challenge
to the executor’s status.

Administrators – An individual or an artificial entity such as a


company can be appointed administrator by a court of competent
jurisdiction. Once so appointed, such an administrator can bring,
or defend, a probate action.

(b) BENEFICIARIES – Anyone entitled to benefit under a Will or


Codicil or pursuant to the laws of intestacy can bring or defend a
probate claim. If such a person is claiming under a Will or Codicil
the person’s identity must be established whether or not he or she
is related to the deceased. If the claim is being made pursuant to
the laws of intestacy, the claimant must prove paternity,
consanguinity etc.

CHILDREN: If a child of the deceased was born in wedlock the


germane birth certificate must be produced. If the child is
illegitimate and the deceased’s name is not on the birth certificate
a declaration of paternity has to be obtained.

See Re Atwell’s Estate (1978) 34 WIR 40 (Sir William Douglas


CJ sitting in the Barbados High Court, on an application for a
declaration of paternity and a grant of letters of administration,
rejected a document purporting to be an admission by the
deceased of paternity of the plaintiff).

Re Hollygan’s Estate, Wilson & Another v Parris (1983) 35 WIR


224 (CA of Guyana observed that the mere fact that the party
propounding a Will took a benefit thereunder was not per se
sufficient to raise suspicion of lack of knowledge and approval by
the testatrix);

SURVIVING SPOUSE: If the beneficiary is the surviving spouse


a marriage certificate must be produced if he or she was married to
the deceased. If they were not lawfully married, a court order has
to be obtained declaring the person a surviving spouse if the
jurisdiction recognizes common law unions. As in “Highlander”
there can be only one such person!

(c) CREDITORS – Creditors can be party to a probate action/claim


but locus standi has to be established as well. A promissory note
or a mortgage instrument is proof of such standing.

6. MATTERS FOR CLAIMANT’S STATEMENT OF CASE – If for


instance a claimant is proceeding to challenge the validity of a Will he
can raise issues dealing with execution (for instance alleging forgery);
attestation; or testamentary capacity (an assertion that the testator was
non compos mentis or there was want of capacity on the basis of
duress, intoxication etc.)

7. MATTERS FOR THE DEFENCE – Conversely, a defendant


resisting a claim that a Will is valid will argue that the required
formalities existed.

8. TESTAMENTARY DOCUMENT – This is any Will or Codicil, a


draft of same or written instructions for either by the testator; or any
document purporting to be a copy of any Will or Codicil destroyed or
lost or evidence of such missing Will or Codicil.

Unless a court directs otherwise, the parties to a probate claim must


give evidence, by affidavit or witness statement, of all testamentary
documents of which they are aware, in their possession etc.

9. SAMPLE PROCEDURE – An example of a case commenced by


Fixed Date Claim Form (“FDCF”) would proceed along the usual
path (claim documents filed, acknowledgment of service entered,
defence or affidavit in response filed, first hearing of the FDCF etc.)
until completion. A good grasp of civil procedure is, therefore, very
important as this will govern the procedure to be pursued in the
probate claim. Students must, therefore, be very conversant, or au fait,
with the relevant rules.

10. COSTS – The general rule is that the awarding of costs in a probate
claim is solely within the discretion of the court. Additionally, costs
usually follow the event and a successful party will be entitled to an
award of costs. For example, if a Defendant insists that a Will is
invalid and that it should be proved in solemn form he, if unsuccessful
at trial, will be ordered to pay costs unless he had reasonable grounds
for his stance. Vide Twist v. Tye [1902] P. 92.

EXECUTORS – The general rule is that an executor who proves a


Will in solemn form is entitled to costs from the estate. This is the
case whether or not he went to court of his own volition or was forced
to do so by interested parties such as beneficiaries or creditors.
Relevant decisions are Re Cole’s Estate, Barclay’s Bank Ltd. v Cole
(1962) 106 Sol Jo 837; and Campbell v. Robinson and others Suit
No. P. 071 of 1999 (Jamaica Supreme Court May 18, 2000).

OTHER INSTRUCTIVE CASES ON COSTS – Other instructive


cases are Spiers v English [1907] P. 122; Re Cutliffe’s Estate, Le
Duc v Veness [1958] 3 All ER 642; Re Dalloway [1982] 3 All ER
118; Bankay and others v Sukhdeo (supra); and Marley et al v
Mutual Security Bank & Trust Co. Ltd (1990) 39 WIR 237 (PC;
Jamaica).

Ian G. Wilkinson QC
Guest Lecturer
March 10, 2015