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Guidance notes for unusual applications
The following information will help legal practitioners make sure that applications for representation in unusual matters are prepared properly from the outset and finalised as efficiently as possible. Unusual applications include the following:
It is well established law that a corporation sole may obtain a grant of representation. However, unless authorised by statute (eg, Trustee Companies), a corporation aggregate may not obtain a grant because it cannot swear the necessary oath.
The disablement of a corporation aggregate (such as a public or private company) can not be overcome by allowing an officer of the corporation to take the oath. The practice in such cases is to make a grant (in testate cases) of administration with the will annexed to a personal nominee or ‘syndic’ of the corporation for the use and benefit of the corporation.
Grants are commonly made to syndics in cases where an executorial appointment, in favour of an individual fails, and the testator has disposed of their entire estate to a charity – that is a corporation. Applicants in such cases are required to file the instrument of appointment of the syndic which must be under the seal of the corporation. Unless dispensed with, and only for good reason, a surety guarantee should be filed.
In all cases where the Court grants representation, the person to whom the grant is made must file with the Court a true and just account verified by affidavit of the administration of the estate, when requested to do so by the Court or the Registrar.
Anyone who has sufficient interest in the estate can request the Registrar to require the executor or administrator to file an account. In determining the request, the Registrar considers the interests of the estate, the beneficiaries and the costs and inconvenience occasioned by the preparation of the account. On filing, the account is placed on the Probate Office file and is available for public search.
Wills can be deposited with the Registrar for safekeeping. Any will deposited must be in a sealed envelope, which has written on it:
- the testator's name and address (as they appear in the will)
- the name and address (as they appear in the will) of the executor(s)
- the date of the will, and
- the name of the person depositing the will.
A fee must be paid to deposit a will. The testator or the testator’s solicitor must attend the Probate Office in person to deposit a will.
When an original will has been lost, or destroyed without the intention of revoking it, application can be made to prove a copy of such will. The order of the Court normally includes a direction that the grant be limited until the original will or a more authentic copy be proved.
Generally, where a will is in the hands of a testator and is not produced on their death, the Court can presume it was destroyed by the testator with the intention of revoking it. However, the presumption may be rebutted by proof that raises a higher degree of probability to the contrary.
A will is taken to be properly executed if its execution conforms to the internal law in force in the place:
- where it was executed
- which was the testator's domicile or habitual residence at the time the will was executed, or at the testator's death or
- of which the testator was a national, either at the date of execution of the will, or at the testator's death.
Where a person dies intestate on or after 8 November 2001, "domestic partners" (including same sex partners) are able to share in the estate. Where a person is a domestic partner of the deceased at the time of death and where that person has lived continuously with the deceased for 2 or more years or is the parent of the deceased's child then the "domestic partner" is entitled to the "spouse's share" of the estate.
In determining if a domestic relationship existed all the circumstances of the relationship are taken into account, including any one or more of the following matters set out in section 35(2) of the Relationships Act 2008 (External link) –
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f) the ownership, use and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
If the deceased leaves both a spouse or registered domestic partner or registered caring partner and an unregistered domestic partner, the entitlement to the partner’s share of the deceased’s residuary estate is determined according to a distribution table set out in section 51A(1) of the Administration and Probate Act 1958 (External link).