Chapter 4

PROBATES

Executors 139
Transmission of executorship 151
How soon a will can be proved 156
Requirements on proving a will 156
Fees 182
Costs of non-contentious probate proceedings 185
Note.—This chapter deals with grants of probate in cases where the deceased died domiciled
in England and Wales. For the practice in cases where the deceased died domiciled out of England
and Wales, see Chapter 12. For interpretation of wills (including codicils), see Chapter 3.

Note: In anticipation of the revision of the Non-Contentious Probate Rules the

expression ‘witness statement’ where it is used in this work refers to the form
of application or evidence required with reference to any rule in force at the
time of the application.

EXECUTORS

Executor’s title

4.01 An executor derives his title and authority from the will of his testator
and not from any grant of probate. The property of the deceased, including
any right of action, vests in him on his testator’s death, and he can institute a
claim, as executor, before he proves the will. He cannot obtain a judgment
before probate, not because his title depends on probate, but because
production of the probate is the only way that he is allowed to prove his title1.
An executor may be substituted or removed in appropriate circumstances in
accordance with s 50 of the Administration of Justice Act 1985 and the
substitute gains his title from the order appointing him (see Chapter 41).
1
Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603 at 608; referred to in Ingall v Moran
[1944] KB 160, [1944] 1 All ER 97. Similarly, the title of an executor to appoint a trustee
under s 36 of the Trustee Act 1925 can be proved only by a grant of representation in the
United Kingdom (Re Crowhurst Park, Sims-Hilditch v Simmons [1974] 1 All ER 991, [1974]
1 WLR 583, applying Chetty v Chetty and Ingall v Moran).

Express appointment of executor

4.02 The proceeding by which an executor confirms his title is called proving
the will.
4.03 An executor named in the will is entitled before all others to prove the
will.
4.04 An executor of a will may be expressly nominated, or may be such
according to the tenor of the will.

1
4.05 Probates

4.05 The appointment may be absolute, when he is constituted immediately

without any restriction as to the estate with which he may deal, or limited as
to time etc. It may be qualified by limitation as to (1) time, or (2) place, or (3)
subject-matter, or the appointment may be conditional or contingent.
4.06 If a testator has, by his will, authorised another person to nominate an
executor, probate will be granted to the person nominated1.
1
Re Cringan’s Goods (1828) 1 Hag Ecc 548. See also Re Deichman’s Goods (1842) 3 Curt 123;
Re Ryder’s Goods (1861) 2 Sw & Tr 127. Where the testator appointed as executors two
named persons together with such person as they, jointly with the testator’s wife, should
nominate, but the executors and the wife could not agree, probate was granted to the named
executors, power being reserved to the third person when nominated: Jackson and Gill v
Paulet (1851) 2 Rob Eccl 344.

Limitation as to time
4.07 The appointment may be qualified by limitation as to the time when the
person appointed shall begin, or when he shall cease, to be executor. For
example, a testator may appoint his son to be executor when he shall attain the
age of eighteen years, or he may appoint a person to be executor during the
widowhood of his wife, or the minority of his son, or for a period of years after
the testator’s own death. Where there is no appointment of a person to act
before the period limited for the commencement of the office, or after the
period limited for its expiration, the court may grant administration (with will)
to another person, limited until there is an executor1, or, if a limited grant of
probate has been made, may grant cessate administration (with will) to the
person next entitled under NCPR SI 1987/2024 r 20 after the period of the
appointment has ended. A bare appointment of a minor executor does not vest
the estate in him until he obtains probate upon attaining 18 years of age.
1
See Senior Courts Act 1981, ss 118 and 119, para A1.337. See also paras 4.30 ff, as to minor
executors.

Limitation as to place
4.08 An appointment may be limited to a particular place. Thus, where a
testator appointed A and B executors in Portugal, and C and D executors in
England, it was held that this meant ‘limited to estate in Portugal’, and that A
and B were not entitled to probate in England1.
1
Velho v Leite (1864) 3 Sw & Tr 456.

Limitation as to subject-matter
4.09 The powers of the executor may be limited as to the subject-matter, as
where a person is appointed to deal with a particular part of the testa-
tor’s property only, and at the same time another person is appointed general
executor1. Where a testator appointed executors except as to property
embarked in trade, and then appointed his widow executrix in relation to his
business as a licensed victualler, probate was granted to the widow limited to

2
 Executors 4.15

the business2. Where, however, a testator appoints A, B and C executors, but

as to C as to his literary affairs only, A and B are granted probate of all the
estate, while C is restricted to co-operating with them as to literary affairs.
Where A is appointed executor save as to the literary estate and B is appointed
executor as to the literary estate only, grants of probate may issue to them,
each limited to the relevant part of the estate. See also paras 11.319 and
11.324.
1
Lynch v Bellew and Fallon (1820) 3 Phillim 424.
2
Re Falkner’s Estate (1915) 113 LT 927.

Will limited to personalty

4.10 Where a will is specifically limited to personal estate and an executor is
appointed, his powers must be regarded as limited, and the grant of probate
must be limited to personal estate.
4.11 In such a case, no order for a grant limited to part of the estate under
NCPR SI 1987/2024 r 51 is necessary either in respect of this grant or of any
subsequent grant in respect of real estate1.
1
Registrar’s Directions (1947) 15 October and (1958) 24 March.

Conditional appointment
4.12 Where an executor is appointed, provided that he proves the will within
three calendar months next after the death of the testator, the day of the death
is to be excluded in computing the three-month period1.
1
Re Wilmot’s Goods (1834) 1 Curt 1.

4.13 Under s 61 of the Law of Property Act 19251, in all wills etc, made or
coming into operation on or after 1 January 1926, unless the context
otherwise requires, the expression ‘month’ means a calendar month2.
1
See para A1.84.
2
See also Re Figgis, Roberts v Maclaren [1969] 1 Ch 123, [1968] 1 All ER 999 (gift to wife if
she should be living ‘at the expiration of a period of three months from my death’. It was held
that, in accordance with s 61, Law of Property Act 1925, the period was one of three calendar
months, computed in whole days excluding the day of the testator’s death. The testator died
at 5 a.m. on 9 January: thus the period ended at midnight on 9 April).

4.14 Where a testator has appointed as executor ‘A, but if A is not in England
at the date of death then such person as A may appoint to act in the settlement
of my estate’ probate will be granted to A’s appointee, upon its being sworn in
the oath that A was not in England at the date of death, and production of the
appointment by A1.
1
Re Andreason (September 1943, unreported).

4.15 When a person is appointed executor provided a certain condition is

satisfied, the oath to lead a grant of probate to such executor should include
the facts establishing that the condition was satisfied.

3
4.16 Probates

Substituted appointment

4.16 A person may appoint an executor to act alone, or in conjunction with

others, or several may be appointed successively. Thus A may be appointed,
but if he is unwilling or unable to act (or failing him), B, but if he is unwilling
or unable to act (or failing him), C. In such a case A is said to be the instituted
executor, and the substituted executor cannot obtain probate until the right of
the first named to do so has been superseded, eg he has renounced or he is
dead. If an instituted executor once accepts the office and afterwards dies, the
substitutes are, prima facie, all excluded, because the condition of law (if he is
unwilling or unable to act) was extinguished by the acceptance of the instituted
executor. See also para 4.200 as to reservation of power to one of two
instituted executors.

Two appointments

4.17 If there are two separate appointments of executors in a will, the earlier
appointment is held to be revoked by the later appointment of a ‘sole
executor’. Where in a will executors are named, and a codicil contains the
appointment of an executor as ‘sole executor’, the appointment in the will may
be held to be revoked by that in the codicil; but this depends on the exact
wording of the documents, and the extent of the dispositions; for example, a
woman may be added as ‘sole executrix’. So where two wills, each of which
appointed a sole executor, were together admitted to proof, the second being
in the nature of a codicil as regards its dispositions, the judge, with hesitation,
granted probate to both executors1.
1
Geaves v Price (1863) 3 Sw & Tr 71.

4.18 In such cases it is advisable to obtain the directions of the district judge
or registrar before preparing the papers to lead a grant.

Executor according to the tenor

4.19 An executor according to the tenor of a will is a person, not expressly

nominated an executor, who is directed by the will to perform one or more of
the duties of an executor1.
1
Re Fry’s Goods (1827) 1 Hag Ecc 80; Re Brown’s Goods (1910) 54 Sol Jo 478.

4.20 The following directions in wills have been held to constitute executor-
ship according to the tenor: a simple direction to pay debts but not out of a
particular fund1; trustee ‘to carry out this will’2; trustee ‘to get in the estate and
distribute it’3; ‘to hold and administer all my estate’4; ‘I appoint A—— and
B——’ with subsequent reference to executors5.
1
Re Cook’s Goods [1902] P 114.
2
Re Russell’s Goods [1892] P 380; Re Kirby’s Goods [1902] P 188; Re Way’s Goods [1901]
P 345.
3
Re Lush’s Goods (1887) 13 PD 20. See also Kirby [1902] P 188; Re Earl of Leven and
Melville’s Goods (1889) 15 PD 22; and Re Wright’s Goods (1908) 25 TLR 15.
4
Re Way’s Goods [1901] P 345.

4
 Executors 4.25
5
Re Bradley’s Goods (1883) 8 PD 215.

4.21 In the following cases the recognition of an appointment of an executor

according to the tenor was refused: appointment of a trustee without any
duties as executor1; £1 left to the executor and witness, but no executor
named2; a direction to pay debts out of a particular fund3.
1
Re Punchard’s Goods (1872) LR 2 P & D 369, and Re Lowry’s Goods (1874) 3 P & D 157.
2
Re Wood’s Goods (1868) 1 PD 556.
3
Re Toomy’s Goods (1864) 3 Sw & Tr 562.

4.22 An executor according to the tenor may join in taking probate with an
executor nominate1. This may apply for example where a will appoints a
trustee in addition to executors and gives the residue of the estate the trustee
upon trust to pay the debts and funeral expenses and to distribute the estate.
1
Grant v Leslie (1819) 3 Phillim 116.

4.23 In cases of doubt whether the wording of a will is sufficient to constitute

a person executor according to the tenor of the will the directions of the district
judge or registrar should be taken before preparation of the papers.

Deceased domiciled abroad

4.24 As to the appointment of executors, or executors according to the tenor,

in the wills of persons dying domiciled out of England and Wales, see Chapter
12.

Appointment void for uncertainty

Deaths before 1 January 1983

4.25 Where uncertainty arises from the form of the appointment, such as the
appointment of ‘any two of my sons’1, or ‘one of my sisters’2 or ‘A or B’ with
no additional words indicating that the appointment of B is in substitution in
certain circumstances, the appointment is void3, and the question of admission
of oral evidence of the intention of the testator does not arise. If the description
of the executor is ambiguous4, incomplete or imperfect5, the court may admit
oral evidence; but if the correct full names of an existing person are given,
evidence is not admissible to show that the testator intended to appoint
another person, one of whose names was slightly different6.
1
Re Baylis’ Goods (1862) 2 Sw & Tr 613.
2
Re Blackwell’s Goods (1877) 2 PD 72 (three sisters, but two predeceased the deceased: held,
appointment void).
3
Re Victor-Smith (1976) April (unreported motion) in which the deceased had by will
appointed A or B to be executor and trustee and further provided that if they think fit they can
appoint the Westminster Bank Limited or any one of the so-called big five banks to act in
conjunction with them as executors: held, on the application of B, the surviving executor, that
the appointment was void for uncertainty.
4
Re Ashton’s Goods [1892] P 83; Re Hubbuck’s Estate [1905] P 129.
5
As to evidence proving identity in cases of imperfect description, see Re De Rosaz’s Goods
(1877) 2 PD 66; Re Cooper’s Goods [1899] P 193 (wrong surname, due to draftsman’s error,
omitted from probate).

5
4.25 Probates
6
Re Peel’s Goods (1870) LR 2 P & D 46.

4.26 A gift to ‘M and/or J’ has been held to operate as a gift to them as joint
tenants: if either did not survive, the other would take the whole gift1.
Accordingly, an appointment of ‘A and/or B’ as executors would probably not
be held to be void for uncertainty.
1
Re Lewis, Goronwy v Richards [1942] Ch 424, [1942] 2 All ER 364.

Deaths on or after 1 January 1983

4.27 The above decisions were made prior to the passing of s 21 of the
Administration of Justice Act 1982, which section provides statutory guidance
for the court as to the admission of evidence in the interpretation of wills,
whenever made, of testators dying on or after 1 January 1983. The sec-
tion relaxes the former rigid rules of evidence relating to the interpretation of
wills, and the section must now be taken into account in respect of wills of
testators dying on or after 1 January 1983. For a fuller analysis of s 21, see
paras 3.02–3.04.
4.28 In cases of doubt about the wording of the form of appointment, the
directions of the district judge or registrar should be taken before preparation
of the papers.

Who may be executor

4.29 A person of full age and capable of making a will is capable of acting as
an executor.

Executor a minor

4.30 If a minor is appointed sole executor, administration with the will

annexed for his use and benefit, limited until he shall attain the age of 18
years1, will be granted:
(1) Where he has no interest in the residuary estate, to the person entitled
to such residuary estate2.
(2) Where the minor has a beneficial interest in the residuary estate, to the
following who have or have acquired parental responsibility for him
namely: his parents, a person in whose favour the court makes a
residence order in respect of the minor, a step-parent, his guardians, a
special guardian, an adoption agency or local authority. A second
administrator is joined (by nomination) in accordance with the require-
ments of s 114(2) of the Senior Courts Act 1981 if there is only one such
parent, guardian or other person competent and willing to act, unless it
appears to the court to be expedient in all the circumstances to appoint
the parent, guardian or other person to act alone.
1
The Family Law Reform Act 1969 (see para A1.191) reduced the age of majority from 21 to
18 years with effect from 1 January 1970.
2
NCPR SI 1987/2024 r 32(1).

6
 Executors 4.37

4.31 The appointment does not operate to transfer any interest in the property
of the deceased to the minor or constitute him a personal representative for any
purpose unless and until probate is granted to him1. On attaining his majority,
he may take or renounce probate, as he wishes. See also ‘Sole executor a
minor’, paras 11.142 and 11.143.
1
Senior Courts Act 1981, s 118, para A1.337.

4.32 Where one of several executors is under age, probate will be granted to
the other executors, power being reserved to the minor on attaining full age,
when double probate may be granted to him, provided that the number of
acting executors is then less than four1.
1
Senior Courts Act 1981, s 114(2), para A1.333.

Executor’s title
4.33 An executor’s title is not defeasible by bankruptcy, insolvency, or felony1;
the court has, however, in a proper case a discretion to pass over the prior right
of an executor by order under s 116 of the Senior Courts Act 1981: for
practice, see paras 25.96 ff.
1
Smethurst v Tomlin and Bankes (1861) 2 Sw & Tr 143; Re Drawmer’s Estate (1913) 108 LT
732.

Executor lacks mental capacity

4.34 Lack of capacity within the meaning of the Mental Capacity Act 2005 is
a ground upon which an executor may be excluded from probate1, but the
usual practice where he is the sole executor is to make a grant for his use and
benefit (see para 11.243 ff).
1
Evans v Tyler (1849) 2 Rob Eccl 128 at 131.

Executor in prison
4.35 For procedure for obtaining a grant where the executor is serving a term
of imprisonment, see paras 11.301 ff and 25.96 ff.

The Public Trustee and trust corporations

4.36 The Public Trustee or a trust corporation, if appointed executor, has

power to obtain probate.
4.37 For the practice relating to grants in such cases, see Chapter 9.

7
4.38 Probates

Corporation not a trust corporation

4.38 A grant of probate cannot be made to a corporation other than a trust

corporation as defined by English law1.
1
See NCPR SI 1987/2024 r 2(1) for definition of ‘trust corporation’.

4.39 Where a corporation (not being a trust corporation) and an individual

are appointed executors the individual’s right to probate has priority under
NCPR SI 1987/2024 r 20, and probate may be granted to the individual only,
it being recited in the oath and grant that the corporation is not a trust
corporation as defined by NCPR SI 1987/2024 r 2(1). Alternatively, applica-
tion for the grant of probate may be made by the individual alone, with power
being reserved to the non-trust corporation: so the status of the corporation to
extract a grant of double probate will be tested at the time when application
is made for the subsequent grant1.
1
Registrar’s Direction (1977) 6 December.

Sole executor a non-trust corporation

4.40 Before a grant of administration (with will) can be made under NCPR SI
1987/2024 r 36(4)(a) to the nominee or attorney of a corporation (not being
a trust corporation) entitled as executor, it must be established that the
corporation has power under its constitution to take a grant through its
nominee or attorney. This may be established by the production of a copy of
the constitution1.
1
Registrar’s Direction (1956) 2 January.

Firm appointed executors

4.41 If a firm of solicitors or a trading firm is appointed executors, the
appointment applies only to the members of the firm at the date of the will of
the testator, unless a contrary intention is expressed in the will, the appoint-
ment being regarded as of the individual members constituting such firm at the
date of appointment1. In such a case the oath should state that the applicants
were equity partners or share owning or profit-sharing members2 in the firm in
question at the date of the will. All such partners or members should be
accounted for in the same way as if the individual members had been named
as executors (eg by reciting any renunciation or death, or reserving power to
non-proving members of the firm).
1
Re Fernie’s Goods (1849) 6 Notes of Cases 657. Quaere, where a will appoints a firm of
solicitors as executors and that will is subsequently confirmed and republished by a codicil,
whether the appointment of the executors should be regarded as of the individual partners of
the firm as at the date of the codicil.
2
Re Rogers [2006] EWHC 753 (Ch), [2006] 2 All ER 792, [2006] 1 WLR 1577; see para 4.47.

4.42 See also paras 4.199 ff, ‘Clearing off executors’.

8
 Executors 4.47

Appointment of firm partners

4.43 A clause in a will appointing the firm of X ‘who may act through any
partner or partners of that firm or their successors in business at the date of my
death not exceeding two in number to be the executors and trustees of this my
will’ has been held not to be void for uncertainty but, with less than full
confidence, construed as an appointment as executors of all the partners in the
firm at the date of the testator’ death, probate to be granted to two with power
reserved to the others. Such clauses cause great difficulty: a wording greatly to
be preferred is that suggested by Mr R T Oerton and quoted in Re Horgan1 viz:
‘I appoint the partners at the date of my death in the firm of X, of . . . , or
the firm which at that date has succeeded to and carries on its practice, to be
the executors and trustees of this my will (and I express the wish that two and
only two of them shall prove my will and act initially in its trusts)’, the words
in brackets being merely precatory2.
1
Law Society’s Gazette, May and June 1967, pp 244, 343.
2
Re Horgan [1971] P 50, [1969] 3 All ER 1570; applying Re Fernie’s Goods (1849) 6 Notes
of Cases 657.

4.44 Variations of the wording suggested in the previous paragraph may result
in uncertainty, eg ‘I appoint two of the partners at the date of my death in the
firm of X, of . . . ’, and it may be possible to save the appointment only by
recourse to s 20 (rectification) or s 21 (interpretation) of the Administration of
Justice Act 1982—see following paragraph and paras 3.02–3.04 and
3.258–3.271.
4.45 The decisions referred to in the footnotes to paras 4.41 and 4.43 were
made prior to the passing of s 21 of the Administration of Justice Act 1982,
which section provides statutory guidance for the court as to the admission of
evidence in the interpretation of wills, whenever made, of testators dying on or
after 1 January 1983. The section relaxes the former rigid rules of evidence
relating to the interpretation of wills, and the section must now be taken into
account in respect of wills of testators dying on or after 1 January 1983.

Partnership firm succeeded by limited liability partnership

4.46 A limited liability partnership is a corporate entity created by the Limited

Liability Partnership Act 2000 and it is eligible to be a ‘recognised body’ by
the Council of the Law Society by virtue of s 9 of the Administration of Justice
Act 1985. Although the term ‘partnership’ is used in its description, such a
body is not a partnership within the meaning of s 1(2)(b) of the Partnership
Act 1890 and this is confirmed in s 1(5) of the Liability Partnership Act 2000.
4.47 The usual appointment of a partnership containing a succession
clause (see para 4.43) has caused a difficulty where at the date of the
testator’s death a limited liability partnership succeeded the partnership.
Formerly the district judges and registrars held the view that the appointment
failed in consequence of the limited liability partnership being a corporate
body (with a legal personality) whose members were not partners. On a further
scrutiny of the appointment clause it was held in Re Rogers (decd) [2006]
EWHC 753 (Ch), [2006] 2 All ER 792, [2006] 1 WLR 1577 that the court
should take a practical and common sense view in eliciting and giving effect to

9
4.47 Probates

the intentions of the testatrix and that on a true construction probate should
be granted to profit-sharing members of the limited liability partnership (they
being the equivalent of partners in the previous partnership). Lightman J held
that just as a partner in a partnership was a profit sharing partner the
appointment could only apply to profit-sharing members unless a contrary
intention is established in the will. In consequence of this the oath should
confirm that the applicant executors are profit sharing or share-owning
members of the limited liability partnership at the death of the deceased.

Other incorporated practices

4.48 Following Re Rogers (decd) (see para 4.47) similar considerations will
apply to an incorporated practice such as a company recognised by the Law
Society and it may be treated as a successor firm for the purpose of construing
the usual succession clause to a partnership firm. In this case (profit-sharing or
share-owning) directors or members replace partners who may apply as
executors. An incorporated practice may consist of members who are each
individual limited companies. The limited companies while being substituted
or successor executors of the deceased are not entitled to probate. These
executors may qualify as non-trust corporations to obtain a grant letters of
administration with will of the deceased through their nominees or attorneys
for their use and benefit. See paras 5.239–5.245.

Alternative business structures

4.49 Difficulty may arise where the appointment of an executor applies to a

firm which is a corporate body comprised of share owner lawyers or probate
practitioners (authorised persons) as well as other share owners or persons
(non-authorised persons) who exercise control or have an interest in the body
but are not lawyers or probate practitioners. Such a firm may provide a
mixture of legal and other professional services (alternative business structure).
It is licensable by the Solicitors Regulation Authority, an approved regulator
under the Legal Services Act 2007. Unless the will expresses a contrary
intention, the appointment of the firm as executor would appear to apply to all
the shareholders. The question may arise as to who would constitute the
executors where the appointment applies to a successor firm and the instituted
executors were all share-owning probate practitioners or other legal practitio-
ners.
4.50 In cases of doubt about the wording of the form of appointment, the
directions of the district judge or registrar should be taken before preparation
of the papers.

An official appointed executor

4.51 Where an executor is designated by his official title, and is not named, the
appointment refers to the holder of the office at the date of the death of the
testator and not at the date of the will, unless the context indicates otherwise1.
In this case the oath should include a statement that the applicant was the

10
 Executors 4.57

holder of the office at the date of death.

1
Re Jones’ Estate (1927) 43 TLR 324. See Registrar’s Circular, 30 July 1946.

Number of acting executors allowed

4.52 In no case may probate be granted to more than four persons in respect
of the same part of the estate of the deceased1.
1
Senior Courts Act 1981, s 114(1), see para A1.333.

4.53 Where four general executors and another executor in respect of the
deceased’s literary effects were appointed in the will, the court held that four
only could take the grant1.
1
Re Holland’s Estates [1936] 3 All ER 13.

Reservation of power to non-proving executors

4.54 If several executors are appointed, one or more of them may prove the
will without the consent or renunciation of the others, power being reserved to
grant probate to them whenever they or any of them shall duly apply for the
same.
4.55 Notice of the application for probate normally must be given to the
executor or executors to whom power is to be reserved (r 27(1)), unless a
district judge or registrar dispenses with the giving of such notice where he is
satisfied that it is impracticable or would result in unreasonable delay or
expense to give it (r 27(3)). The oath must state that such notice has been
given, unless a district judge or registrar otherwise directs.
4.56 Where leave is sought to dispense with the giving of notice prior to
preparing the oath probate practitioner making the application for the grant
should set out the reasons for this in a letter to the district judge or registrar.
If no preliminary enquiry is made, and the case is one in which notice has not
been given to any executor to whom power is to be reserved, the application
for the grant must be accompanied by a similar letter. The oath should contain
a paragraph confirming that notice of the application has not been given to the
non-proving executors and if appropriate that notice of the application has
been dispensed with.
4.57 Where power is to be reserved to executors who are partners in a firm,
notice need not be given to them if probate is applied for by another partner
in that firm (r 27(1A) as amended). It should be noted that notice is required
to be given to the relevant partners in the firm if the executor applying (or if
none of the executors applying) is not also a partner in the firm. For these
purposes and in the following paragraphs the meaning of partners and firm
may be extended to include directors or members and incorporated practice
respectively.1
1
Applying Re Rogers [2006] EWHC 753 (Ch), [2006] 2 All ER 792.

11
4.58 Probates

4.58 Where power is to be reserved to partners in a firm, any notice of the

application given to them, by an executor applying for probate, may be given
to the partners by sending it to the firm at its principal or last known place of
business (r 27(2)) (see para 4.57).
4.59 An executor to whom power is reserved may, either during the lifetime or
after the death of the proving executor or executors, renounce probate, or
prove the testator’s will by extracting a grant of double probate (so long as the
acting executors are not increased thereby to more than four in number).
4.60 Reservation of power is made only to an executor who is equal in degree.
When an executor for life takes probate, power is not reserved to the executor
substituted upon his decease, but where two executors are appointed, one a
full executor, and the other ‘for life’, a further executor being substituted on
the death of the latter, a grant may be made to the two, but as to one for his
life only, reserving power to the substituted executor on the death of the
executor for life.

Right of proving executors to exercise powers

4.61 Under s 8 of the Administration of Estates Act 1925:

‘(1) Where probate is granted to one or some of two or more persons named as
executors, whether or not power is reserved to the others or other to prove,
all the powers which are by law conferred on the personal representative
may be exercised by the proving executor or executors for the time being
and shall be as effectual as if all the persons named as executors had
concurred therein.
(2) This section applies whether the testator died before or after the
commencement of this Act.’
Sub-s (2) of s 2 of the Administration of Estates Act 1925 also provides that:
‘any conveyance of the real estate may be made by the proving executor or executors
for the time being, without an order of the court, and shall be as effectual as if all
the persons named as executors had concurred therein.’

Renunciation

4.62 Provided that he has not intermeddled in the estate, an executor may
renounce probate. As to renunciation, and retraction of renunciation, see
Chapter 15.

Settled land

4.63 In every oath to lead a grant of probate, where the deceased died on or
after 1 January 1926, the deponent must swear to the best of his knowledge,
information and belief whether there was land vested in the deceased which
was settled previously to his death (and not by his will) and which remained
settled land notwithstanding his death (NCPR SI 1987/2024 r 8(3)).

12
 Transmission of executorship 4.69

Probate including settled land

4.64 Before 14 October 1991 a general grant specifically including settled

land could have been made in appropriate circumstances. NCPR SI 1987/2024
r 29 was amended, with effect from 14 October 1991. As a result all grants
issued on or after that date in respect of settled land are grants of administra-
tion, are silent as to whether the deceased died testate or intestate and are
issued only as separate grants limited to settled land. A person who is entitled
to a grant in respect of the free estate and who is also entitled to a grant in
respect of settled land must now take separate grants1. For practice as to settled
land grants, see Chapter 10.
1
Secretary’s Circular (2), 26 September 1991.

Probate save and except settled land

4.65 Where there was land vested in the deceased which remained settled land
notwithstanding his death, a general executor may take probate save and
except settled land. The grant will be in respect of the free estate only,
excluding the value of the settled land. (See NCPR SI 1987/2024 r 29(3)).

Alteration of general grant to save and except

4.66 As to amendment of a general grant by insertion of the limitation ‘save

and except settled land’, see para 10.130.

Grant to person other than executor

4.67 If no executor is appointed, or if there is no executor willing or

competent to obtain probate, letters of administration, with the will annexed,
are granted to some person or persons interested in the estate. (See Chapter 5.)

TRANSMISSION OF EXECUTORSHIP

Chain or transmission of executorship

4.68 A probate does not necessarily cease permanently with the death of the
grantee. An executor having taken probate of his own testator’s will becomes
by the same act an executor, not only of that will, but also of the will of any
testator of whom the other was sole, or sole surviving, proving executor, and
so on, without limit, upwards1.
1
Administration of Estates Act 1925, s 7 (para A1.95); see Re Perry’s Goods (1840) 2 Curt 655
(an executor cannot take probate of one will but renounce probate of the other).

4.69 The condition of this rule, however, is that the will of each testator shall
have been duly proved in the present High Court or in the Probate Court, or
in any of the ecclesiastical or other courts of England which the latter court

13
4.69 Probates

superseded1, provided that the grant is not limited in its operation.

1
Jernegan v Baxter (1832) 5 Sim 568; contra, Fowler v Richards (1828) 5 Russ 39; Re
Gaynor’s Goods (1869) LR 1 P & D 723.

4.70 The office of executor is similarly transmissible downwards without

limit, provided that the same condition be observed, viz, that each surviving
executor makes a will, which is afterwards duly proved in this country by the
executor therein named; and in each case the chain of representation is taken
up or handed down, not only in the case of a sole executor, but of more than
one, where the survivor of them dies testate1, and appoints an executor or
executors who prove his will.
1
Re Smith’s Goods (1842) 3 Curt 31.

4.71 Where the original grant of probate was limited to certain property, a
chain of representation will continue through a full grant of probate of the will
of the sole or last surviving executor1; but there would appear to be no chain
through a limited grant of probate of the will of a full executor2. There is no
chain through a grant of probate limited to settled land3 (issued before
14 October 1991 under the previous practice), nor through a grant to the
attorney of an executor4 (see ‘Status of attorney’, para 11.68).
1
Re Beer’s Goods (1851) 2 Rob Eccl 349; see also Administration of Estates Act 1925, s 7(4)(a).
2
Re Bayne’s Goods (1858) 1 Sw & Tr 132; Re Martin’s Goods (1862) 3 Sw & Tr 1: see also
Re Bridger’s Goods (1878) 4 PD 77. These were all cases of limited grants issued, under the
old practice, in the estates of married women. There appears to be no decision on the point
since the passing of the Administration of Estates Act 1925, but the same principle still
probably applies.
3
Direction, 21 July 1936.
4
Administration of Estates Act 1925, s 7 (see para A1.95); Re Dampier (1935) May
(unreported motion).

4.72 The chain of executorship is not broken by a temporary grant of

administration if probate is subsequently granted1, ie the person entitled to
take probate as executor must have obtained a grant of probate after the
temporary grant has become cessate.
1
Administration of Estates Act 1925, s 7(3) (see para A1.95).

4.73 When there are more than one executors, the transmission of the
executorship is made through the survivor of the executors who have taken
probate of the will1. If one executor ‘A’ proves with power reserved to ‘B’ who
survives ‘A’ but does not prove, there is a chain of executorship through ‘A’
that will endure unless and until the executor to whom power was reserved
applies for and obtains double probate (see also paras 4.86 ff). Where,
pursuant to s 114(4) of the Senior Courts Act 1981 (see ‘Addition of
representative after grant has issued’, paras 7.40 ff), the court appoints an
additional personal representative to act with an executor, the appointment of
the additional personal representative does not have the effect of including him
in any chain of representation (s 114(5)). Similarly, where an executor is
substituted through an order under s 50(1)(a) of the Administration of Justice
Act 1985, s 50(2)(a) provides that the appointment does not have the effect of

14
 Transmission of executorship 4.78

including him in any chain of representation2.

1
See Re Lorimer’s Goods (1862) Sw & Tr 471.
2
See para A1.388.

4.74 In the case of deaths before 1 January 1926, the law as to the chain of
representation was contained in the statute ‘Executors’ (25 Edw 3, Stat 5)1.
1
6 Halsbury’s Statutes (3rd edn) 438.

Chain through resealed colonial grant

4.75 A chain of executorship exists where the Court of Probate in a place to
which the Colonial Probates Act 1892 applies has granted probate to an
executor (or executors) and such grant has been resealed in England, and
where subsequently the same court has granted probate of the will of the
executor (or last surviving proving executor) to his executor (or executors),
and this grant also has been resealed in England1.
1
Registrar’s Direction (1949) 24 February.

Chain through Northern Irish grant

4.76 Under s 1(4) of the Administration of Estates Act 19711, a grant of
probate made in Northern Ireland of the will of a person who died domiciled
in Northern Ireland which includes a notation of such domicile is, without
resealing, to be treated for the purposes of the law of England and Wales as if
it had been originally made by the High Court in England and Wales. Section
7(1) of the Administration of Estates Act 1925 (chain of representation) thus
applies to such grants as it applies to grants made in England and Wales.
1
See para A1.205.

4.77 Section 1 of the Act of 1971 applies in relation to grants made before, as
well as after the commencement of that Act1. A chain of executorship is thus
capable of being created by, or continued through, a Northern Irish grant of
probate of the will of a person who dies domiciled in Northern Ireland,
provided that the grant contains a statement of such domicile, whether or not
the grant has been resealed in England and Wales.
1
Section 1(6); see para A1.205.

No chain through Scottish confirmation

4.78 The Administration of Estates Act 1971, by s 12 and Sch 2, Pt I1,
abolished the resealing in Scotland of grants issued in England and Wales and
vice versa, as from 1 January 1972. By s 1(1) and (2) of this Act2, where a
person dies domiciled in Scotland a confirmation granted in respect of all or
part of his estate, or a certificate of confirmation relating to one or more items
of his estate, which includes in either case a notation of his domicile shall,
without resealing, be treated for the purposes of the law of England and Wales

15
4.78 Probates

(a) if in favour of executors nominate, as a grant of probate, or (b) in any other

case, as a grant of letters of administration. It is, however, provided by s 1(3)
that s 7 of the Administration of Estates Act 1925, which deals with the chain
of executorship, shall not, by virtue of s 1(2)(a), apply on the death of an
executor named in a confirmation or certificate of confirmation. Thus, no
chain of executorship can be created, nor can one continue, through a Scottish
confirmation.
1
See para A1.216.
2
See para A1.205.

Transmission of executorship, how evidenced

4.79 The transmission of the executorship is evidenced by the production of
each grant of probate forming a link in the chain.

Circumstances in which chain is broken

4.80 The chain of such representation is broken by:

(a) an intestacy;
(b) the failure of a testator to appoint an executor; or
(c) the failure to obtain probate of a will,
but is not broken by a temporary grant of administration if probate is
subsequently granted1.
1
Administration of Estates Act 1925, s 7(3) (para A1.95).

4.81 Every person in the chain of representation to a testator has the same
rights in respect of the real and personal estate of that testator as the original
executor would have had if living; and is, to the extent to which the estate
whether real or personal of that testator has come to his hands, answerable as
if he were an original executor1.
1
Administration of Estates Act 1925, s 7(4) (para A1.95).

Chain through grant for use and benefit of incapable executor

4.82 The chain of executorship is not broken by letters of administration
(with will) of an estate granted for the use and benefit of an executor who has
proved the will but has since become incapable or lacks capacity to manage his
affairs and property within the meaning of the Mental Capacity Act 2005.
Where such an executor dies without recovering his capacity, the grant, if it has
been impounded under the former practice, may be handed out on a district
judge’s or registrar’s order; see para 17.67 ff.

16
 Transmission of executorship 4.88

Executor for life, or for a limited time

4.83 If the executor be appointed for his life, his office is not transmissible to
his own executor; and the same observation applies to the case where an
executor is appointed to act only until a specified event or contingency shall
take place.
4.84 Where there is no limitation in the actual appointment of an executor,
but there is a substitution of executors on the happening of certain events, the
executorship is transmitted through the executor first appointed should the
substituted executors die in his lifetime.

Death of acting executor where power is reserved to another

4.85 Where a grant of probate has been made to one executor, power being
reserved to the other executors, on the death of the proving executor intestate
or without an executor, if the non-proving executors are not willing to take a
grant of double probate, their right may be cleared off by renunciation or
citation to enable a grant de bonis non to be made to the person next entitled.
Alternatively, application may be made under s 116 of the Senior Courts Act
19811 for a grant de bonis non, limited until the non-proving executors shall
obtain a grant. When the other executors obtain probate the limited de bonis
non grant becomes cessate2.
1
See para A1.335; and para 25.96 ff, as to procedure.
2
Re Pritchard (29 July 1937, unreported).

4.86 If the proving executor leaves an executor who proves his will there is a
chain of representation which is, however, liable to be broken, as it ceases to
apply if the executor to whom power was reserved afterwards exercises his
power to take double probate: see Administration of Estates Act 1925, s 7(1).
The non-proving executor may be cited to accept or refuse double probate
with a view to the extinction of his rights: see paras 24.16 ff and 24.89 ff.

Chain in abeyance

4.87 When the only, or surviving, proving executor has died, leaving a will
appointing an executor, who for some reason does not prove his testator’s will,
or renounce probate thereof, a grant may be made, without any order of the
district judge or registrar, to a residuary legatee or other person entitled, of the
unadministered estate of the original deceased, limited until the executor shall
obtain probate of his testator’s will. The reasons for his failure to prove his
testator’s will should be set out in the oath to lead the de bonis non grant.

Executrix during widowhood, or executor for a special purpose

4.88 It would appear that an executrix appointed ‘during widowhood’, and

dying a widow, transmits the executorship to her own executors, but only if
there is no substitutional appointment of executors. But it is otherwise if she
remarries; since, upon her remarriage, the probate granted to her ceases, and

17
4.88 Probates

she has then no power of transmitting the executorship. There is no chain of

executorship through an executrix appointed ‘during life or widowhood’, even
though she dies without remarrying; nor when the executor is appointed to
carry on a business or for any special purpose, and the grant is limited for that
purpose.

HOW SOON A WILL CAN BE PROVED

4.89 By NCPR SI 1987/2024 r 6(2) it is provided that:
‘Except with the leave of a district judge or registrar, no grant of probate or of
administration with the will annexed shall issue within seven days of the death of the
deceased.’
ie the probate may not issue at an earlier date than the eighth day after the
death of the testator, the day of his death being excluded in the computation.
Application for such leave should be made without notice at the registry from
which the grant is to issue. The nature of the evidence required under NCPR
SI 1987/2024 r 6(2) is a matter for the discretion of the district judge or
registrar considering it. An affidavit (witness statement) may not be necessary
in all cases, but it is desirable that there should be some supporting document1.
1
Registrar’s Direction (1974) 7 February.

Expedition of grant
4.90 As to expedition of the issue of the grant, see para 2.41.

REQUIREMENTS ON PROVING A WILL

The executor’s oath (witness statement of application)

4.91 The proving executor swears or affirms (as the case may be) to the
identity of the will and the facts of the case in a document called the oath (see
NCPR SI 1987/2024 r 8, and Forms No 60 ff (para A6.65 ff).
4.92 When the current probate rules are replaced, the oath will be replaced by
an application witness statement verified by a statement of truth. For the most
part the requirements for the witness statement are set out in the following
paragraphs. Wherever the expression ‘oath’ or ‘affidavit’ is used ‘witness
statement’ should be substituted.
4.93 The following paragraphs set out the requirements in an order corre-
sponding to the usual form of oath for executors.

Settling oaths

4.94 The Probate Service no longer settles straightforward oaths. Where there
is a particular difficulty about the application the practitioner should set this
out clearly when he or she may submit the oath in draft for settling by the
registry from which the grant is to issue. The probate registries prefer that a
pre-lodgement form be used for this. Examples of difficulty may be an

18
 Requirements on proving a will 4.104

ambiguous appointment of executor or imprecise attestation clause (see para

2.27 as to form of pre-lodgement enquiry and A6.195A for precedent Form
190A). The settled draft should be lodged with the sworn papers.
4.95 Fee: for perusing and settling, £121.
1
NC Probate Fees Order 2004 (SI 2004/3120) (as amended), Fee 11.

Name of deponent
4.96 Care should be taken to ascertain, and include in the oath, the true full
name of the deponent, whether or not this is correctly stated in the will.
4.97 If the name of an executor or executrix is misspelt or imperfectly or
incompletely stated in the will, the words ‘in the will called . . . (as in will)’
should be added to his or her correct name.
4.98 Where the discrepancy is very slight no further evidence is usually
required—eg when the two names are identical in sound, as ‘Bailey’ and
‘Bayley’; or, if ‘George Smithson’ is appointed and his full name is ‘George
William Smithson’. In such a case it must be sworn in the oath ‘George William
Smithson, in the will called George Smithson’.

Affidavit of identity

4.99 The district judge or registrar may, in cases where he considers it

necessary, require proof, in addition to an assertion in the oath (execu-
tor’s witness statement), of the identity of the party applying for the grant
(NCPR SI 1987/2024 r 6(1)). This proof may take the form of an additional
statement in the oath (executor’s witness statement), or a separate ‘affidavit of
identity’ (witness statement of identity), which must refer to the facts as they
were at the date of the will, and must dispose of the possibility of there being
another person more nearly approaching the description given in the will.
(Form of affidavit, No 14 (A6.19.))
4.100 The following are instances of occasions when such an affidavit
(witness statement) is usually necessary.
4.101 Executor wrongly described in the will: as ‘the elder’ or ‘the younger’;
by a wrong Christian name (eg ‘William Smithson’ is appointed and ‘George
William Smithson’ applies, or ‘John Robert Brown’ is appointed and ‘Robert
John Brown’ applies, or ‘John Robert Brown’ is appointed and ‘John Richard
Brown’ applies); or by a wrong surname.
4.102 The use in the will of an incorrect relationship for the executor may
require proof of identity, eg that there is no person of the relationship stated
bearing the name used, or who could have been intended as the executor (see
also paras 4.190 ff).
4.103 Executor imperfectly described in the will: ‘Colonel Brooks’, ‘Mr
Midwinter’, ‘Dr Carn’.
4.104 Where the will appoints ‘my wife’, without giving the name of the wife,
the oath should include a statement (if it be the fact) that the deponent was the

19
4.104 Probates

lawful wife of the deceased at the date of the will and until the date of his
death; and corresponding wording used if ‘my husband’ be appointed.

Change of name

4.105 If an executor has changed his name since the date of the will, he should
be described in the oath as ‘A.B., formerly and in the will called C.D.’, and the
oath should include evidence in support of the change of name. If the change
has been evidenced by a Deed Poll, particulars of this should be given, and the
Deed Poll should be produced.
4.106 Where a change of name has been effected by constant use and repute
but no Deed Poll has been executed, the oath should state when the change
occurred and establish that the deponent has permanently abandoned the old
name and uses, and intends to continue to use, only the new name.
4.107 If an executrix has married or remarried since the date of the will, her
description should be followed by the words ‘formerly ——, spinster’, or
‘formerly ——, widow’, as the case may be.
4.108 Where a change of name takes place following a civil partnership or
marriage, the applicant may rely on this to describe himself or herself
‘formerly , who has [since entered into a civil partnership (or)
since married/remarried]’.
4.109 A title of an executor is not defeated if he or she has acquired, or is
applying for, a gender recognition certificate under the Gender Recognition Act
2004. The oath should describe the executor in a changed name, if any. An
affidavit (witness statement) of identity confirming the facts should be filed
with the application. The grant will issue to the executor in the changed name
without any reference to his or her description in the will. Owing to the
sensitive nature of the information, the affidavit (witness statement) of identity
will be sealed after inspection and not be open to public disclosure or
inspection unless the executor gives permission1. Such permission, if given,
should ideally be included in the affidavit (witness statement) of identity. This
paragraph does not apply where a decree of divorce or nullity of the marriage
(in existence at the date of the will) between the executor and the deceased was
in force at the date of death of the deceased.
1
Gender Recognition Act 2004, s 22(4)(b).

Address of deponent
4.110 The true place of residence (even if only temporary) of every deponent
to the oath must be inserted. The full postal address (including the county and
postcode) should be used. A club or hotel will not suffice unless it be the actual
residence, in which case this must be sworn to.
4.111 When an address care of a bank or other accommodation address is
given it must be stated in the oath (executor’s witness statement) or certified by
the probate practitioner that the deponent has no permanent or better address1
or the reason why the permanent address cannot be disclosed. Leave to

20
 Requirements on proving a will 4.121

withhold a permanent address is not given lightly.

1
Direction (1941) 22 July.

4.112 It is not necessary to include the former address of an executor, except

where he is imperfectly described in the will and the address is relevant to the
question of his identity.
4.113 In the case of a grantee administering the estate in his professional
capacity (eg a solicitor/probate practitioner/chartered accountant etc), the
professional address of the grantee may be given in the oath and in this event
such address will appear in the grant.
4.114 The practice of requiring the occupation of every deponent to be given
in the oath is no longer rigidly enforced. However, the occupation of the
deponent must be included in the oath where title to the grant depends on his
or her status.
4.115 Titles of honour and ecclesiastical titles of the applicant and the
deceased may be included in the oath. These will appear in the grant. The wife
or widow of a Knight or Baronet may be described as ‘Lady’ or ‘Dame’ unless
she has a higher title in her own right1.
1
Secretary’s Circular, 2 March 1955.

Order of executors
4.116 Grants of probate normally name the executors in the order in which
they appear in the oath (executor’s witness statement).

Description of documents to be proved

4.117 Where two or more wills are together to be proved as the will they are
described in the oath (executor’s witness statement) as ‘the true and original
last will and testament as contained in the paper writings marked A, B and C’
(as the case may be).
4.118 Where an official copy of a will is to be proved, it is referred to in the
oath (executor’s witness statement) as ‘a sealed and certified copy (or an
official copy) of the last will and testament’.
4.119 Where the original will is not available and the court has ordered a
certain document to be proved in its stead, this document is referred to in the
oath (executor’s witness statement) as the will ‘as contained in a copy (or draft)
thereof’, or ‘as contained in the exhibit to the affidavit (witness statement) of
sworn on the —— day of —— 19—’, as the case may be, in
accordance with the order of the court.
4.120 Where certain documents are to be incorporated with a will or codicil,
the will or codicil is described in the oath (executor’s witness statement) as
‘contained in paper writings marked A, B and C’ (as the case may be).
4.121 Where a codicil is proved with the will the words ‘with a codicil’ must
be added after ‘last will and testament’.

21
4.122 Probates

4.122 Where there is more than one codicil the number must be stated in the
oath (executor’s witness statement).

Codicil proved after probate of will

4.123 Where a codicil is to be proved after probate has been granted of the
will, the oath (executor’s witness statement) refers to it as ‘a codicil to the will
proved on the —— day of —— at the Registry’.

Marking testamentary documents

4.124 The executor, and the person before whom the oath is sworn, must
‘mark’ the will and codicils or other testamentary papers by signing their
names upon these documents (NCPR SI 1987/2024 r 10). Each document
should be marked, but when two documents are written on the same sheet of
paper, one marking is sufficient. It is not necessary that the exhibit clause,
required on all other occasions when a document (including a will) is exhibited
to an affidavit, should be endorsed. Note that when the rules and procedure
change over to the use of witness statement, the will and any codicil is ‘marked’
by the proving executor only.
4.125 There is no official requirement that the marking should be made on
any particular part of the document, but it should wherever possible be kept
away from the text of the will. If there is insufficient space on the face of the
document it is often preferable to mark the reverse.
4.126 The marking of a foreign will, if it is not in English, must be made on
the original or official copy lodged for probate and not on the translation into
English.
4.127 The district judge or registrar may give permission for a facsimile copy
of the will and any codicil to be marked in lieu of the original (r 10(2)).
Application for such permission should be made in advance to the district
probate registrar. The facsimile copy is supplied by the applicant.
4.128 Where permission has been given for a copy to be marked, the oath
(executor’s witness statement) should recite that the document marked is ‘a
facsimile copy of the true and original last will and testament’. Both the
original will and the copy must be lodged with the papers to lead the grant.
4.129 The will must not be physically attached to the oath or other papers by
pins, paperclips or other fastening as this may call for evidence of plight and
condition to explain the condition of the will.

Name of testator. Alias

4.130 A grant should always issue in the true name of the deceased. The
inclusion of one or more alternative names (known as alias names) may be
necessary because the deceased held assets in a name other than the true full
name, or for some other sufficient reason.
‘Where it is sought to describe the deceased in a grant by some name in addition to
his true name, the applicant shall depose to the true name of the deceased and shall

22
 Requirements on proving a will 4.136

specify some part of the estate which was held in the other name, or give any other
reason for the inclusion of the other name in the grant.’ (r 9.)

Change of name

4.131 In the absence of evidence of a change of name, or of any discrepancy

in the papers lodged, it is assumed that the name of the deceased given in the
sworn documents is the true name. A surname may, however, be abandoned,
and another adopted or assumed, in various ways; eg by succession or
elevation to a title of nobility, by change of name by Royal Licence, or simply
by constant use and repute. Subject to any statutory restriction, the law of this
country allows any person to assume and use any name, provided that its use
is not calculated to deceive and inflict pecuniary loss1.
1
Fendall v Goldsmid (1877) 2 PD 263; Cowley (Earl) v Countess of Cowley [1901] AC 450,
70 LJP 83, HL.

4.132 The effect of a Deed Poll is merely to record a change of name in a

solemn form which will tend to perpetuate the evidence of the change. A
change of name by an adult must involve a conscious decision on his part that
he wishes to change his name and be generally known by the new name1.
1
Dictum of Buckley J, in Re T (otherwise H) (an infant) [1963] Ch 238, [1962] 3 All ER 970,
in which case he was dealing with a mother’s attempt to change her infant child’s surname
without the knowledge or consent of the father: see also Y v Y [1973] Fam 147, [1973]
2 All ER 574, as to change of child’s surname in similar circumstances.

4.133 Where a testator has changed his name since making the will and the
change has been recorded by a Deed Poll, he should be described in the oath
(executor’s witness statement) as ‘AB, formerly CD’, and it should be recited
that he changed his name from CD to AB by Deed Poll, giving its date. The
Deed Poll should be produced.
4.134 In the case of a change by use and repute where there has been no Deed
Poll, the oath (executor’s witness statement) should show when the name was
changed and establish that the change was complete and final, and amounted
to a total abandonment of the former name and the permanent acquisition of
the new name for all purposes. In cases of doubt whether there has been such
a complete abandonment of the former name, it is considered in probate
practice that the true name remains that in which the birth was registered or,
in the case of the surname of a married woman, that of her husband, and the
grant should issue in that name, the reputed name being shown as an alias,
where necessary.

Will in incorrect name

4.135 If the heading of the will does not give the true full name, in order to
deal with the discrepancy it should be sworn in the oath (executor’s witness
statement) that the true name of the deceased was AB, but that he made (and,
if it be so, executed) his will in the name of CD.
4.136 Where the heading of a will gives the true and full name of the testator,
but the signature omits names or initials, the grant is issued in the true name

23
4.136 Probates

alone, unless it is shown in the oath (executor’s witness statement) or by

affidavit (witness statement) that an alias is required (eg for the purpose of
administration of assets standing in another name).

4.137 If, apart from any question of such omission, the actual names or
initials differ, the true name should be specifically stated in the oath (execu-
tor’s witness statement) and it should be sworn that the signature is the usual
signature of the testator or the discrepancy otherwise accounted for.
4.138 In each of the foregoing cases, the oath (executor’s witness statement)
must state specifically which is the true name1.
1
Registrar’s Direction (1931) 27 March.

Alias name required in grant

4.139 In cases, whether of testacy or intestacy, where the deceased held
property standing in a name other than his true full name, an alias may be
included in the grant to facilitate the administration. The oath (execu-
tor’s witness statement) should depose specifically to the true name and any
alias name. It should identify the estate that the deceased held in the alternative
name or names: at least one item of property in each alternative name must be
specified. If the inclusion of an alias is desired for some other reason, this must
be deposed to.

Wording of oath (executor’s witness statement)

4.140 In all instances where the deceased died in the United Kingdom and the
death has been recorded in the Register of Deaths:
(1) the names and dates of birth and death of the deceased as recorded in
the Register shall be included in the oath (executor’s witness statement);
and
(2) in any case where the name of the deceased differs from that recorded
in the Register, that name shall also be included in the oath (execu-
tor’s witness statement)1.
Unless the deceased was known by a different name it is not necessary to refer
in the oath (executor’s witness statement) to the facts as being recorded in the
Register. This information is required to make an effective search for matching
entries in the probateman computer system. Whenever an alias is necessary the
oath should describe the deceased by his true name, followed by the
alternatives (ie ‘AB otherwise CD’), and the requirements of NCPR SI
1987/2024 r 9 must be complied with.
1
Practice Direction (1999) 12 January, [1999] 1 All ER 832, [1999] 1 WLR 259.

4.141 As an alternative to including the facts in the oath (executor’s witness

statement), a separate affidavit (witness statement) of alias may be lodged
(Form No 15 (A6.20)).
4.142 In cases of foreign domicile, the name given in the proceedings
accompanying the copy will (provided that such name is shown in full and not

24
 Requirements on proving a will 4.149

by initials) may be accepted for the grant unless an alias is shown to be

necessary, eg because the deceased held securities in England in different
names.

Address of testator

4.143 The residential address of the testator at the time of his death should be
given in the oath (executor’s witness statement). The full postal address
including the postcode1 should be given. If the address given in the oath is a
hotel or club it should be confirmed in the oath (executor’s witness statement)
that it is a residential hotel or club and the deceased resided there.
1
President’s Direction (22 March 2003).

4.144 Should the address differ from the place of residence stated in the will
or codicil, the testator should be identified with the address given in the
testamentary document of latest date, by stating that he was ‘formerly of’ that
address, or by accounting for any erroneous description, or former description,
of the address, appearing in the will.
4.145 Where the will or codicil contains a temporary address, the testator is
described as ‘of’ his residential address, and ‘formerly of’ the address given in
the will or codicil.
4.146 If the will or codicil contains no address of the testator, and he is
described in it as of, or formerly of, a certain regiment, or of, or formerly of,
a certain ship, or by a military or other service number, such description should
be included in the oath (executor’s witness statement).
4.147 Where the place of residence of the deceased person cannot be sworn to,
the best address available (including an accommodation address) is accepted.
But in these circumstances, on an application for a grant, it should be sworn
that no better address can be given1.
1
Registrar’s Direction (1925) 1 August.

Number of addresses allowed in grant

4.148 Normally only the last residential address of the deceased as shown in
the oath (executor’s witness statement) will be inserted in the grant. If more
addresses are required in the grant, the additional addresses must be deposed
to in the oath (executor’s witness statement) and a sufficient reason for
inclusion of such additional addresses must be given. In no cases will more
than four addresses in all be allowed1.
1
Direction (1939) 23 January.

Description of testator
4.149 Titles of nobility and ecclesiastical titles stated in the oath (execu-
tor’s witness statement) will be included in the grant.

25
4.150 Probates

4.150 It is not necessary to include in the oath (executor’s witness statement)

the marital status of the deceased except where this is relevant to the
applicant’s title to a grant (eg for the purpose of clearing off prior classes in
administration cases).

Date of death

4.151 The exact date of death, where this is known, must be given in the oath
(executor’s witness statement).
4.152 If the fact of death is certain, but the exact date unknown, the oath
(executor’s witness statement) should state that the deceased ‘was last seen
alive (or last known to be alive) on the day of , and
that his dead body was found on the day of .’1
1
Re Long-Sutton’s Estate [1912] P 97, 81 LJP 28.

4.153 If no direct evidence of death is available but the applicant merely

presumes the person to be dead, eg from the fact and circumstances of his
disappearance, an order giving the applicant leave to swear to the death must
be obtained. For the circumstances in which such an order is necessary, and
generally as to the practice, see paras 25.20 ff.
4.154 Where an order for leave to swear death has been obtained, the oath
should state that the deceased died ‘on or since’ the date specified in the order,
and include particulars of the date and effect of the order and state by whom
it was made. For form of oath, see No 119 (A6.124), which should be adapted
as necessary.
4.155 Orders for leave to swear death are retained in the registry and copies
are not given out. The order may be inspected by the solicitor or probate
practitioner, who may take notes to enable the particulars to be included in the
oath1.
1
Registrar’s Direction (1952) 25 January.

4.156 The date of death in a grant is not by itself evidence of death1.

1
Moons v De Bernales (1826) 1 Russ 301; Thompson v Donaldson (1799) 3 Esp 63.

4.157 The Presumption of Death Act 2013 came into force on the 1 October
2014 (SI 2014/1810). A declaration under the act of a missing person’s pre-
sumed death is conclusive of the death and of the date and time of death
(s 3(1)). The oath should include details of the declaration where it is relied
upon as proof of death of the testator1.
1
See para A1.686.

Evidence of death. Armed forces of the Crown

4.158 Definite date. When a certificate from the Ministry of Defence has been
received by the next of kin stating death to have occurred on a specific date, on
such date being sworn to in the oath (executor’s witness statement) no further
evidence of death will be required.

26
 Requirements on proving a will 4.166

4.159 Indefinite date. When a certificate notifies that the deceased was
‘missing, believed killed, etc’ or died or was killed ‘on or since’ a given date or
is presumed to have been killed, or in any case where a definite date of death
is not, or cannot, be given, the certificate received by the next of kin from the
Service Department should be lodged with the papers to lead to a grant1.
1
Direction (1943) 15 July.

Certificates under Merchant Shipping Acts 1970 and 1995

4.160 The address of the Registry of Shipping and Seamen is Anchor Court,
Ocean Way, Cardiff CF24 5JW (tel: 02920 448813). Evidence of death is
provided by the Registrar General of Shipping and Seamen and death
certificates are issued in the following instances:
(a) known deaths or losses in United Kingdom ships;
(b) known deaths or losses of citizens of the United Kingdom and Colonies
in other ships which call at United Kingdom ports;
(c) known deaths abroad of seamen employed in United Kingdom ships.
4.161 In respect of deaths occurring before 1 January 1980. Regulations 3 or
4 and 5 of the Merchant Shipping (Returns of Births and Deaths) Regulations
1972 apply and a certificate in Form RBD6 is issued.
4.162 In respect of deaths occurring on and after 1 January 1980. Regulations
3 or 4 and 5 of the Merchant Shipping (Returns of Births and Deaths)
Regulations 1979 apply and in those cases a certificate in Forms MSF4605,
MSF4606 or MSF4607 is issued appropriate to the circumstances of death.
4.163 Any of these certificates will be accepted as proof of death. All such
deaths are recorded in the Marine Register of Deaths at the General Register
Office in London, Edinburgh or Belfast and the Isle of Man, as appropriate.
4.164 In cases of presumed death the Registrar General of Shipping and
Seamen will issue on request a certified extract from the list of crew on Form
RBD7 for merchant ships and Form RBD8 for fishing vessels.
4.165 This is a certificate that the person named was recorded on the copy of
the List of Crew required to be maintained ashore by reg 16 of the Merchant
Shipping (Crew Agreements, Lists of Crew and Discharge of Seamen) Regu-
lations 1972 and by reg 15 of the Merchant Shipping (Crew Agreements, Lists
of Crew and Discharge of Seamen) (Fishing Vessels) Regulations 1972 and
required to be delivered into official custody by regs 17 and 16 respectively of
these Regulations.
4.166 In respect of deaths presumed to have occurred before 1 January 1980.
Forms RBD7 and RBD8 will also contain a certificate that the Registrar
General of Shipping and Seamen has no information that the person named
survived the loss. This certificate will only be given after information has been
obtained from the owners, and, if appropriate, from the Consul or other
official at or near the place the ship was reported lost. If a body has been
landed ashore and a post-mortem examination made by the authorities in that
country the certificate will be endorsed as to that fact on the reverse in red ink
and imprinted with the office stamp of the General Register Office of Shipping
and Seamen. Only certificates so endorsed will be accepted as proof of death.

27
4.166 Probates

If they are not so endorsed confirmation should be obtained from the Registrar
General of Shipping and Seamen. If confirmed, they will be accepted as proof
of death.
4.167 In extremely urgent cases, confirmation will be applied for by tele-
phone. In certain other cases where there may be a supposition of death,
although it may not be possible to issue one of the certificates described above,
an Inquiry into death can sometimes be held under s 61 of the Merchant
Shipping Act 1970 as amended. Copies of the Report of such an Inquiry may
be obtained by the next of kin from the Registry of Shipping and Seamen.
Where such a Report is available, it should be referred to the district judge or
registrar for his directions whether death has been sufficiently established or
whether an application for an order for leave to swear death (see paras 25.19
ff) is necessary.
4.168 In respect of deaths presumed to have occurred on or after 1 January
1980. Certified extracts from the Crew Lists will rarely be requested. If there
was sufficient evidence available to enable a coroner or statutory enquiry to
conclude that death had occurred upon the loss of a ship, then death will be
registered and will be included in the class of case mentioned in para 4.160 at
(a) above. A certified extract on Form MSF4605 or MSF4606 in respect of a
death on or after 1 January 1980 will, therefore, be no more than evidence that
the person named was on board the ship at the time of its loss. It will not itself
be evidence that death occurred as a result of the loss of the ship1.
1
Registrar’s Direction (1980) 14 April.

Offshore installations
4.169 Under the Offshore Installations (Logbooks and Registration of Death)
Regulations 1972, when a person dies, or is lost in circumstances such that it
is reasonable to believe he has died:
(a) on or from an offshore installation or a lifeboat, life raft, etc belonging
to such an installation; or
(b) in the neighbourhood of such an installation while engaged in any
operation connected therewith,
then, if the death or loss is not required to be registered under the Merchant
Shipping Acts, a return of the death or loss is sent to the Registrar General of
Shipping and Seamen; a copy thereof is registered by the appropriate Registrar
General of Births and Deaths, according to the ordinary residence of the
deceased, in the Marine Register; and a certified copy of the entry may be
obtained.
4.170 Such returns are the equivalent of the returns made by the master of a
ship under the Merchant Shipping Acts, and certificates issued as above (see
paras 4.160–4.168) may be accepted as proof of death1.
1
Registrar’s Direction (1975) 1 May.

28
 Requirements on proving a will 4.177

Certificate issued by government departments, etc

4.171 Certificates of death, and of presumed death, issued from the register
kept by the Secretary of State for Trade under s 55 of the Civil Aviation Act
1949, and deposited with the Registrar General are accepted as evidence of
death for the purpose of issuing grants of representation1.
1
Registrar’s Direction (1953) 15 April.

4.172 Certificates of presumed death issued by the Ministry of Defence, and

the former India Office, Colonial Office and Commonwealth Relations Office
are accepted as sufficient evidence of death1.
1
President’s Direction (1944) 12 May; Registrar’s Direction (1949) September.

4.173 It is within the discretion of a district judge or registrar to accept a

certificate of death or of presumption of death as sufficient evidence of death
notwithstanding that such certificate may not come within the definition of
certificates which can be accepted in accordance with existing practice and
directions.

Place of death

4.174 The place of death is no longer included in a grant of representation,

and it is unnecessary to state it in the oath.

Age of testator

4.175 The age of the testator must be stated in the oath (executor’s witness
statement). If the exact age is not known, then a best estimate should be given1.
1
Practice Direction [1981] 2 All ER 832, [1981] 1 WLR 1185.

Domicile
4.176 Unless otherwise directed by a district judge or registrar, every oath
(witness statement) to lead a grant of representation must state where the
deceased died domiciled1.
1
NCPR SI 1987/2024 r 8(2). Note: The notional domicile assumed in certain circumstances for
the purposes of inheritance tax under s 267 of the Inheritance Tax Act 1984 (see para A1.742)
is irrelevant for probate purposes: the domicile to be sworn to in the probate documents, and
on which the application for the grant should be based, is the deceased’s actual domicile at the
time of death.

4.177 This requirement is necessitated (among other reasons) by the provi-

sions of ss 2 and 3 of the Administration of Estates Act 19711, which give
extended validity to a grant in the estate of a person who dies domiciled in
England and Wales provided that the grant includes a statement of such
domicile (see paras 18.23 ff).
1
See para A1.206.

29
4.178 Probates

4.178 Where the deceased died domiciled in England and Wales, the expres-
sion ‘domiciled in England and Wales’ should be used, and the statement in the
grant will be in this form. If a domicile in England or in Wales is deposed to,
the notation in the grant will nevertheless be ‘domiciled in England and Wales’.
4.179 For the practice as to a grant where the deceased died domiciled out of
England and Wales, see Chapter 12.

Settled land

4.180 Where the testator died on or after 1 January 1926, in every oath the
deponent must swear to the best of his knowledge, information and belief
whether there was land vested in the deceased which was settled previously to
his death (and not by his will) and which remained settled land notwithstand-
ing his death1.
(It is anticipated that when revised rules take effect, the witness statement of
the applicant will not be required to state whether there is settled land vested
in the deceased unless the application is for a settled land grant.)
1
NCPR SI 1987/2024 r 8(3).

4.181 For the practice in relation to settled land, see Chapter 10.

Recitation of judgment in a probate claim

4.182 When a will has been pronounced for in a probate claim, an office copy
of the judgment must be lodged with the papers. The following statement
should be included in the oath:
‘That the Honourable Sir . . . , one of the Judges of the Chancery Division, by
judgment dated the day of 20 , in an claim entitled
“A against B” pronounced for the force and validity of the said will.’
4.183 Where the court has pronounced for a will or codicil as contained in a
copy, draft or reconstruction thereof, the wording of the decree should be
followed in the oath: see Form No 68 (A6.73).
4.184 As to the practice on an application for a full grant following a grant
pending determination of a probate claim, see paras 11.369 and 11.370.

Order on summons

4.185 When an order on summons has been made, the following wording
should be used:
‘That by order of Mr Justice (or District Judge or Mr District Probate Registrar) of
this Division dated the day of 20 , it was ordered
that. . . . . . .’

County court judge’s order

4.186 When a probate claim has been determined in a county court, the
county court sends a certificate of the judgment to the Principal Registry or a

30
 Requirements on proving a will 4.192

district probate registry. The particulars and effect of the judgment should be
recited in the oath.
4.187 The order of the county court judge is not recited in the grant but the
grant is noted ‘By order of the County Court at dated the
day of 20 . . . . . . .’

Order for omission of part of will

4.188 If a judgment or order directs the omission from probate of part of the
will, a typewritten copy thereof, omitting such part, must be lodged at the
registry for the fiat of the district judge or registrar to be written in the margin
or the foot of the copy—‘Let the will (and codicil) be proved in accordance
with this copy in pursuance of judge’s [or district judge’s or registrar’s]
order dated 20 ’, and signed by the probate officer or district probate
registrar before photography. A copy of the judgment or order must be lodged
with the papers, and is filed with the will1.
1
Practice Direction [1968] 2 All ER 592, [1968] 1 WLR 987.

4.189 As to orders for omission of part of a will, see paras 3.257–3.280.

Relationship of the applicant

4.190 Except in cases where the relationship of the applicant to the deceased
is relevant to the question of the former’s identity or entitlement to a grant, it
need not be stated in the oath (executor’s witness statement).
4.191 Thus, if the full correct name of the executor or beneficiary appears in
the appointment in the will it is normally unnecessary to state his relationship
to the deceased.
4.192 The following are examples of the circumstances in which the appli-
cant’s relationship to the deceased must be stated:
(a) where the appointment of the executor (or beneficiary) is by relation-
ship and not by name (eg ‘I appoint my son as sole executor’; or ‘I leave
all my estate to my wife (without naming her)’);
(b) where there is some discrepancy or possible ambiguity in the appoint-
ment, and inclusion of the relationship assists in establishing the
identity of the applicant;
(c) in cases where the applicant’s title to a grant depends entirely on his
relationship, ie where application for administration (with will) is made
by a person entitled to the estate undisposed of by the will. Thus, in a
case where a will appoints no executor and there is no gift of the
residuary estate, the widow/civil partner of the deceased must depose
that she is ‘the lawful widow/civil partner of the deceased and the only
person now entitled to the undisposed-of estate’, or as the case may be.
But see para 4.109 above concerning the effect of the Gender Recognition Act
2004 on the title of an executor who has acquired, or is applying for, a gender
recognition certificate.

31
4.193 Probates

4.193 If a testator appoints ‘my wife’ an executor, and does not name her in
any part of the will, an addition should be made to the oath, stating that the
applicant was the lawful wife of the testator at the date of the will and
remained so until the date of his death. If this has been omitted from the oath,
the registry will accept a certificate by the solicitor or probate practitioner if it
includes a statement that he has seen the marriage certificate, and that it
confirms the claim of marriage. This applies, with necessary modification, in
the case of the appointment of ‘my husband’ or ‘my civil partner’.

Executor: capacity in which application made

4.194 The ‘capacity’ in which proving executors claim the grant is worded, in
the oath, in the manner shown in the following list:

When one executor only appointed ‘The sole executor.’

When one executrix only appointed ‘The sole executrix.’
When executors are all males ‘The executors.’
When executors are all females ‘The executrixes.’
When some are male and some female ‘The executors.’
When one or more of executors appointed has died ‘The surviving executor(s)’1.
When one or more of executors appointed renounces ‘One (or two etc) of the executors’2.
When power is reserved to any executors (see para ‘One (or two etc) of the executors.’
4.55 as to notice to the executor or executors to
whom power is reserved and statement in oath)
When an executor is appointed on attaining the age of ‘The said A. B. having attained the
[21] years3 age of [21] years.’
An appointment during life or widowhood, there be- ‘But as to the said A. B. during life
ing also a general executor. or widowhood.’
When powers of executor are limited to dealing with ‘The executor for England.’
English property
When an executor is appointed during life, and on his ‘The executor substituted.’
death another is appointed, the latter is described as
When there is no limitation, for life or otherwise, in ‘An executor named in the said
the appointment of an executor but other executors will’4.
are substituted on death, the first-named executor, if
he applies is described as
When there is no limitation in the actual appointment ‘The executors named in the said
of executors, and there is also a substitution of execu- will as mentioned in it’5.
tors on certain events
When a codicil cites the death of an executor, or can- ‘The executors named in the said
cels an appointment in the will will.’
1
Where this description applies, it should be so sworn in the oath (executor’s witness
statement).
2
The renunciation (see Form No 185 (A6.190)) must be filed.
3
It should be noted that although the age of majority was reduced to 18 with effect from
1 January 1970 (see Family Law Reform Act 1969, s 1 (para A1.191)), references in wills,
whenever made, to a specific age are unaffected. As to the construction of expressions such as
‘full age’, ‘minor’, ‘infancy’, ‘minority’, etc when used in wills, see para 11.118.
4
Registrar’s Direction (1910) 20 June.
5
Registrar’s Direction (1912) 25 April.

32
 Requirements on proving a will 4.201

Individual and company executors

4.195 For procedure and wording of the oath (witness statement) in cases
where an individual and a company not being a trust corporation are
appointed executors, see para 4.39.

Partnership firm, incorporated practice or person holding official position

4.196 For practice, and wording for oath (witness statement), see paras
4.41–4.48.

Trust corporation

4.197 Where a trust corporation is appointed as executor, probate may be

granted to the corporation solely, or jointly with an individual: see Ch 9.

Public Trustee named as co-executor

4.198 Where an executor applies for probate of a will in which the Public
Trustee is also appointed an executor, it must be ascertained whether the Public
Trustee wishes to act before a grant can be made to the other executor alone1.
As to grant to the Public Trustee, see paras 9.56 ff.
1
Registrar’s Direction (1920) 18 November.

Clearing off executors

4.199 Where a will contains an appointment of an executor, but in certain
events (eg his predecease, or unwillingness to act etc) another is substituted,
then, on an application for probate by the latter, the oath should describe him
as ‘the executor named in the will, A. B. mentioned in the said will having died
in the lifetime of the deceased’ (or having renounced probate, etc as the case
may be).
4.200 If power is to be reserved to one or more executors, a statement to that
effect should be made in the oath (witness statement). The oath must state that
notice of the application for probate has been given to the executor or
executors to whom power is to be reserved, unless the district judge or registrar
directs otherwise or dispenses with the giving of such notice or the appoint-
ment is of partners in a firm and one (or more) of the other partners is applying
(see paras 4.55 and 4.57).
4.201 Where two or more persons are appointed as executors by a will and
the identity of at least one of the executors is established but the identity of the
other or others is not, on an application being made for a grant of probate by
the properly identified executor it is not normally necessary to determine the
identity of the remaining executors or their entitlement to a grant. Application
may be made to the district judge or registrar, by letter, under r 27(3) to
dispense with giving notice to the executor or executors to whom power is to
be reserved. The executor applying for the grant must, however, include full
details relating to the executors in the oath, as this information could be

33
4.201 Probates

material on an application for a subsequent grant to the estate1.

1
Registrar’s Direction (1977) 6 December.

4.202 Where one executor is a minor the oath should show that power is
reserved to him on attaining the age of 18 (see also para 4.32). As to grant
where the sole executor is a minor, see paras 4.30–4.31 and 11.142 and
11.143.
4.203 On an application for probate by an executor, the fact that another
executor has renounced need not be sworn to in the oath but it is of practical
assistance to the registries if it is. The renunciation must be filed.

Amount of estate in oath (witness statement)

4.204 Except in those cases where the need to deliver an account for the
purposes of inheritance tax or capital transfer tax has been dispensed with2,
the oath (witness statement) must state the actual gross value of the estate to
be covered by the grant, as indicated by the HMRC account. The account
summary in the new Form IHT421 must be filed with the papers to lead to the
grant. This replaced the former requirement in applications made on or after
1 November 2004 where the deceased died after 5 April 2004 and Form D421
was stamped and authorised by the HMRC Inheritance Tax before being
submitted with the application.
2
Inheritance Tax (Delivery of Accounts) (Excepted Estates) Regulations 2004 (SI 2004/2543)
(as amended) (see A2.118).

Death before 5 April 2004

4.205 In all cases in which an HMRC account is not required to be delivered,
the oath will recite the gross value of the estate as not exceeding the limit
applicable to the date of death (see para 4.206) and the net value rounded to
the next whole thousand1.
1
Practice Direction 22 March 2002.

Death on and after 6 April 2004

4.206 For a detailed analysis on the requirements of HMRC Inheritance Tax
see Chapter 8.
4.207 The concept of ‘excepted estate’ in respect of deaths after 1 April 2002
applies where the deceased had never been domiciled in or treated as domiciled
in the United Kingdom and the estate is attributable to cash or quoted shares
or securities which do not exceed £100,0001 or £150,000 in respect of deaths
after 1 September 2006.2
1
Inheritance Tax (Delivery of Accounts) (Excepted Estates) Regulations 2002 (SI 2002/1733) –
see Appendix II.
2
Inheritance Tax (Delivery of Accounts) (Excepted Estates) (Amendments) Regulations 2006
(SI 2006/2141).

34
 Requirements on proving a will 4.210

4.208 Every oath (executor’s witness statement) must contain a statement by

the applicant as follows:
‘To the best of my knowledge, information and belief the gross estate passing under
the grant does not exceed/amounts to* £ and that the net estate does not
exceed/amounts to* £ [and that this is not a case in which an HMRC Inheritance
Tax Account is required to be delivered]*.’
The alternatives marked with an asterisk should be deleted as appropriate1.
1
Practice Directions [1981] 2 All ER 832, [1981] 1 WLR 1185. In relation to a death prior to
13 March 1975, a sworn HMRC Inheritance Tax affidavit is still required (see NCPR SI
1987/2024 r 42).

4.209 The relevant dates and gross limits are:

Death on or after Gross limit

6 April 2009 £1,000,000/£325,000
1 April 2009 £1,000,000/£325,000
6 April 2008 £1,000,000/£312,000
6 April 2007 £1,000,000/£300,000
6 April 2006 £1,000,000/£285,000
6 April 2005 £1,000,000/£275,000
6 April 2004 £1,000,000/£263,000
6 April 2003 £240,000
6 April 2002 £220,000
6 April 2000 £210,000
6 April 1998 £200,000
6 April 1996 £180,000
6 April 1995 £145,000
1 April 1991 £125,000
1 April 1990 £115,000
1 April 1989 £100,000
1 April 1987 £70,000
1 April 1983 £40,000
1 April 1981 £25,000

and the relevant net limits and court fees payable are:

Exceeding Not exceeding Court fee

£——— £5,000 (no fee)
£5,000 (relevant gross limit £155
stated above)

4.210 The oath (witness statement) may not, in any event, be sworn (or
signed) with the amount of the estate left blank; nor may the amount
subsequently be altered without re-swearing (or re-verifying the statement of
truth).

35
4.211 Probates

4.211 A grant in the estate of a person who died domiciled in England and
Wales which includes a statement of such domicile is proof of title in Scotland
and Northern Ireland as well as in England and Wales1. The amount to be
sworn in the oath (witness statement) is accordingly the gross value of the
estate in the United Kingdom (ie in England and Wales, Scotland and Northern
Ireland).
1
Administration of Estates Act 1971, ss 2–3 (see para A1.206–A1.207).

4.212 Where the deceased died domiciled in Scotland or Northern Ireland or

outside the United Kingdom, it is necessary to include in the HMRC account
details of the estate in Great Britain (ie in England and Wales and in Scotland),
but care must be taken to exclude the value of any Scottish assets in arriving
at the figure to be sworn in the oath (witness statement): this should state that
the amount shown is the gross value of the estate ‘in England and Wales’. As
to the limitation which now appears in a grant made in England and Wales in
the estate of a person dying domiciled in Scotland or Northern Ireland, see
para 12.23.
4.213 As to the estate on which probate fees are assessed, see paras 4.267 ff.
4.214 An alteration made by HMRC Trusts and Estates, Inheritance Tax in
the amount of the estate shown in the HMRC Inheritance Tax account does
not normally necessitate amendment of the figure sworn in the oath (execu-
tor’s witness statement).
4.215 Amounts in all documents lodged at the probate registries should be
expressed in decimal currency whatever the date of death.

Estate not fully ascertained

4.216 It is most important that the value of the estate should, at the outset, be
established, but in special circumstances an application is entertained for a
grant merely showing property ‘so far as can at present be ascertained’. (See
para 8.20.)
4.217 Where it is desired to show the amount ‘so far as can at present be
ascertained’, the figure sworn in the oath (executor’s witness statement) should
so far as possible be an estimate of the final value of the whole estate, and not
merely the total of those assets whose value is known.

Nil estate

4.218 Where it is sought to obtain a grant of representation in respect of a

deceased person who left no estate, the oath (witness statement) must include
a statement of the purpose for which the grant is required1.
1
Registrar’s Direction (1932) 30 November.

4.219 It is contrary to principle for the court to make a grant of representation

in the estate of a person who died domiciled out of England and Wales leaving

36
 Requirements on proving a will 4.223

no assets within the jurisdiction1.

1
Aldrich v A-G [1968] P 281, [1968] 1 All ER 345, in which the grant was sought to enable
the applicant to establish his claim to be the father of the deceased.

Estate for purposes of probate or administration

4.220 For the purposes of probate or administration, the local situation of
property and the validity of debts and encumbrances for ascertaining the net
value of an estate, are determined according to the general principles of English
law, any rules or concessions which are peculiar to inheritance tax or capital
transfer tax (eg under Double Taxation Conventions) being ignored. Thus, all
property forming part of the estate must be included, notwithstanding that it
may be exempt from inheritance tax or capital transfer tax.

Community of property

4.221 Where, by the law of the place of domicile of the deceased, community
of property exists between the deceased and a surviving spouse, the grant will
be in respect of the whole estate, but the court fee will be payable in respect of
half of it only. The following concluding paragraph to the oath (execu-
tor’s witness statement) is appropriate and should be used: ‘the whole of the
estate in England and Wales (or in the United Kingdom, if appropriate) in
respect of which a grant is required amounts to the sum of £—— to the best
of my knowledge, information and belief; and that £—— (half) ——of that
sum has accrued to the surviving spouse by reason of the existence of
community of property under the law of the place of domicile of the said
deceased at the date of the marriage’1.
1
Registrar’s Direction (1953) 5 May (amended (1968) 11 April). It should be noted, however,
that the question whether there is community of property between spouses is not invariably
determined by the law of the place of domicile at the date of marriage: see Dicey and Morris,
Conflict of Laws.

Reversionary interests
4.222 The value of all reversionary interests owned by the deceased must be
included in the estate. Unless otherwise expressly provided, the reversionary
interest vests absolutely on the death of the testator1.
1
Chaffers v Abell (1839) 3 Jur 577; Packham v Gregory (1845) 4 Hare 396; Re Bennett’s Trust
(1857) 3 K & J 280.

4.223 In relation to deaths occurring after 12 March 1975, reversionary

interests are, save in certain circumstances, ‘excluded property’ for the purpose
of inheritance tax or capital transfer tax. Nevertheless, the value of any such
interest must still be included in the estate for probate purposes. (See also para
4.270.)

37
4.224 Probates

Civil servants’ gratuities

4.224 A gratuity granted under the Superannuation Act 1972 on the death of
a civil servant is, unless a nomination has been effected (see para 1.74),
included in the amount given in the oath, although such gratuities are not
liable to payment of inheritance tax or capital transfer tax or probate fees1.
However, under the Principal Civil Service Scheme 1972, and Amendment
Schemes and since 1 April 2015 a new Civil Service Scheme called ‘alpha’, the
lump sum payable on a civil servant’s ordinary retirement is receivable as of
right. Therefore, in the rare case of a civil servant dying after retirement but
before the lump sum has been paid, it will it seems be liable to inheritance tax
or capital transfer tax as part of his estate. Gratuities to the personal
representatives of deceased school teachers granted under the Teachers Super-
annuation Acts are part of the estate for the purposes both of inheritance tax
or capital transfer tax2 and of fees. On 1 October 1969 the employees of the
Post Office ceased to be civil servants. Lump sums payable in respect of the
death of such employees on and after that date are payable as of right under
the Post Office Staff Superannuation Scheme, and not under the Superannua-
tion Act 1972. Unless the employee had given a direction to the trustees of the
Scheme that the sum should be applied at the absolute discretion of the
trustees, the lump sum is part of his estate, and should be included both for the
purpose of inheritance tax or capital transfer tax and of probate fees.
1
Direction, 10 November 1910, as revised, 1958. See also NC Probate Fees Order 2004 (SI
2004/3120), art 4.
2
A-G v Quixley (1929) 98 LJKB 652.

Property not included

4.225 Since the oath (executor’s witness statement) relates only to property
passing under the grant, the amount sworn to should not include property
which, although part of the aggregated ‘estate’ for the purpose of inheritance
tax or capital transfer tax, does not pass under the will or intestacy of the
deceased, eg property passing under a nomination, property passing under a
settlement (even if the deceased had, and exercised by his will, a special power
of appointment), property held on joint tenancy, and gifts inter vivos. Even
where the deceased had a general power of appointment, the property should
be included only if (1) the power has been exercised by his will, or (2) the
property belongs to the estate in default of appointment1.
1
O’Grady v Wilmot [1916] 2 AC 231, HL.

4.226 Payments made under the Social Security Act 1975 in connection with
the death of the deceased resulting from an industrial injury, and damages
under the Fatal Accidents Act 19761, are not included in the amount shown in
the oath (executor’s witness statement), but damages awarded under the Law
Reform (Miscellaneous Provisions) Act 19342 are part of the deceased’s estate
and liable to inheritance tax or capital transfer tax3.
1
This Act is a consolidating measure and does not apply to any cause of action arising on a
death before 1 September 1976: where a death occurs before that date, the similar provisions
of the Fatal Accidents Acts 1846 to 1959, apply.
2
17 Halsbury’s Statutes (4th edn) 312; see also para A1.141.

38
 Requirements on proving a will 4.232
3
Feay v Barnwell [1938] 1 All ER 31.

4.227 The amount sworn to in the oath (executor’s witness statement) should
not include property which was vested in the deceased as a trustee and not
beneficially.
4.228 The amount of the death grant payable by virtue of s 32 of the Social
Security Act 1975 is not regarded as part of the estate for any purpose1.
1
Registrar’s Direction (1950) 18 September.

Notice to Treasury Solicitor

4.229 In any case in which it appears that the Crown is or may be beneficially
interested in the estate of a deceased person, notice of the intended application
for a grant must be given by the applicant to the Treasury Solicitor. The district
judge or registrar may direct that no grant shall issue within 28 days after such
notice has been given1. The notice should be sent to: The Treasury Solicitor
(BV), One Kemble Street, London WC2B 4TS or DX 123240 Kingsway (tel
020 7210 4700. Email: [email protected]).
1
NCPR SI 1987/2024 r 38.

Swearing
4.230 The oath should be sworn or affirmed, if in England and Wales, before
a solicitor who holds a current practising certificate, a Commissioner for
Oaths or other person authorised to administer oaths (see paras 22.35 ff as to
the persons authorised to administer oaths in and at places outside England
and Wales).

(Statement of truth)

4.231 When the current probate rules are replaced, the executor’s witness
statement in support of the grant will have to be verified by a statement of
truth unless otherwise directed.

Copies of wills

4.232 With effect from 1 January 2009, practitioners are responsible for
preparing and submitting two copies each of the will and any codicils. The
Probate Service has set out the following requirements for copies of wills and
codicils:
(a) the copies must be made in good quality A4-size white paper from the
original will and codicil after the oath has been sworn;
(b) the copies should be true and complete but it is not necessary to copy
any covers or instructions for completion and signing of the will;
(c) the copies must be legible and clear and care should be taken to ensure
that any faint typescript or writing or blue ink is clearly visible;

39
4.232 Probates

(d) the top and left-hand margins (at least 1 inch) should be left clear so
that the grant can be attached; and
(e) if it is necessary to take the will apart in order to copy it, the
practitioner should restore it to the same plight and condition that it
was in before it was copied and further enclose a covering letter with
the application confirming that this has been done and that nothing of
a testamentary nature was attached or detached.
4.233 In certain special cases, however the practitioner must lodge an
engrossment or a ‘fiat copy’ of the will (see further para 4.237 ff) and copies.

When engrossment or copies of wills are necessary

4.234 Where alterations in a will have not been properly set up or the will has
been altered after execution the practitioner should make an engrossment
restoring the will to its original form and submit both together with the
probate papers1; similar considerations apply where the will is unsuitable for
facsimile reproduction. This engrossment is then photographed instead of the
will (see also ‘Fiat copies’, para 4.237 ff). Care should be taken in the
preparation of the engrossment as it will be examined in the registry and, if
necessary, returned for correction.
1
NCPR SI 1987/2024 r 11.

4.235 Where some of the documents to be proved are not suitable for
facsimile reproduction, normally a copy of the whole of the documents must
be made and lodged for that purpose. Where, however, one of the documents
to be proved is not suitable for such reproduction, the district judge or registrar
may direct that a copy of that document only need be made and lodged, the
remaining documents being reproduced in facsimile direct for inclusion in the
probate copy.
4.236 Typed or written engrossments (including fiat copies) should reproduce
as accurately as possible all the features of the original. Great accuracy is
essential, and copies containing errors will not be accepted. Strict facsimile
reproduction is not necessary, but punctuation, spacing and division into
paragraphs of the original must be reproduced and the engrossment must
follow continuously from page to page on both sides of the paper1.
1
NCPR SI 1987/2024 r 11(3).

Fiat copies
4.237 Where a will contains alterations or additions which are not admissible,
the copy must omit all such alterations by restoring obliterations where they
can be read, and omitting additions. Where, however, the obliteration of words
is complete, and the words cannot be deciphered, a blank space must be left in
the copy. (As to alterations etc, see paras 3.230 ff.) If necessary the directions
of the district judge or registrar should be sought as to the form of the fiat copy.
4.238 A fiat copy will normally be typed bookwise on durable paper
following continuously from page to page on both sides of the paper. Single
sheets attached together should not normally be used for the purpose. A space

40
 Requirements on proving a will 4.243

of at least 2 inches should be left at the bottom of the last page for the addition
of the ‘fiat’ signed by the registrar or probate officer.
4.239 To assist in the preparation of fiat copies of testamentary documents, it
has been decided that, subject to the district judge’s or registrar’s discretion, as
an alternative to typewritten engrossments, facsimile copies produced by
photography or similar process may be used in the following circumstances:
(a) where a complete page or pages are to be excluded;
(b) where words on the same page below the testator’s signature can be
excluded by masking out;
(c) where the original has been altered but not re-executed or republished
and there exists a photocopy of the original executed document1.
1
Practice Direction [1979] 3 All ER 859: see also NCPR SI 1987/2024 r 11.

4.240 When a fiat copy of testamentary documents is necessary, a copy of all

the documents to be proved is normally required (see paras 4.235 and 4.236).
Where, however, it is necessary for one of several documents to be proved in
the form of a fiat copy, the district judge or registrar may direct that a copy of
that document only need be prepared, the remaining documents being
reproduced in facsimile direct for inclusion in the probate copy. But if, for
example, another codicil appears on the same page as the document in respect
of which the fiat copy is required it will probably be necessary to provide a fiat
copy of all the documents which are to be proved1.
1
Registrar’s Circular, 12 June 1967.

Will re-executed after alteration

4.241 Where a properly executed will has apparently subsequently been
altered and re-executed, the practice is to reproduce in facsimile the document
itself showing the will in its final form as altered at the time of re-execution.
Unless the alterations are initialled by the testator and witnesses to the
re-execution, or are referred to in a further attestation clause, evidence in
relation to them must be produced. See paras 3.230 ff.

Foreign cases

4.242 A probate engrossment is not normally required of a sealed copy of a

will issued by an overseas court, notwithstanding the fact that it may contain
extraneous matter; but, when unsuitable for facsimile reproduction, transla-
tions of foreign wills may be submitted to the district probate registrar, who
will mark the portion required to be copied.

Translations of documents in a foreign language

4.243 These should be certified by an English notary public. It would seem

that this service is no longer provided by British consular authorities.
Translations not so verified will be referred to a district judge or registrar as to
sufficiency (see para 12.68).

41
4.244 Probates

Wills in the Welsh language

4.244 Where a will is in the Welsh language a translation will normally be

made through the Probate Registry of Wales (Cardiff), the will, if necessary,
being sent to that registry from the registry at which the papers are lodged. If
the applicant so desires, however, to avoid delay or for any other reason, he
may lodge a translation verified by the certificate of a notary public or by the
affidavit of a private individual, stating his qualifications.
4.245 A copy of the will in Welsh and of the translation into English will be
included in the probate without any special request, whether the will is
reproduced in facsimile direct or proved in the form of an engrossment or fiat
copy.
4.246 Office copies or certified copies of either the document in Welsh or the
translation may be issued as requested1.
1
Registrar’s Circular, 20 July 1970.

Incorporated documents
4.247 Where a document is incorporated with the will or codicil, direct
facsimile reproduction is used whenever possible. When a copy for such
reproduction is required the incorporated document should be copied imme-
diately after the will or codicil which has incorporated it. (See paras 3.315 and
3.316.)

Copy to perpetuate pencil writings

4.248 Should a will or any part thereof be written in pencil, a copy of the will
or of the pages or sheets containing the pencil writing is made in the registry
and the pencil writings are underlined in red ink on the copy, in order to
perpetuate them.

Proof of joint wills

4.249 For the practice on proving a joint will, see paras 3.213–3.219.

Will of member of the Royal Family

4.250 On the death of a member of the Royal Family application may be

made to the President of the Family Division for an order that the will be
sealed up. Application for such an order is made by summons, which is served
on the Treasury Solicitor. An official of HMRC Trusts and Estates, Inheritance
Tax examines the will and HMRC account before the papers to lead the grant
are lodged.
4.251 No copy of the will is annexed to the grant of probate: the grant bears
a notation ‘Probate granted without annexing a copy of the will by order of the
President dated ’. The usual records of the grant are kept.
4.252 After the will has been sealed up it can be opened only by direction of

42
 Requirements on proving a will 4.256

the President1.
1
In Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother [2007]
EWHC 1607 (Fam) on a application for the unsealing of the wills of the late Queen Elizabeth
the Queen Mother and Princess Margaret, Countess of Snowden the President struck out the
claim as vexatious and an abuse of process, made solely for the purpose of seeking to establish
an imaginary and baseless claim. On appeal the Court of Appeal concluded that the appellant
was entitled to have a substantive hearing of his claim to inspect the wills and accordingly
allowed his appeal ([2008] EWCA Civ 56, [2008] 1 WLR 2327).

Copies of grant for registration

4.253 The executor or administrator may obtain any number of sealed office
copies of the grant for the purpose of expediting the registration of the grant,
at a fee of £10 each, if he applies for them with the application for the grant.
The copies will be sent to the solicitor with the original grant.
He may also obtain copies at any other time, either on personal attendance or
by a postal application when the fee is £101 for the copy grant (including a
copy of any will) and 50p2 for each additional copy if ordered at the same time.
A grant with will annexed is treated as one copy3.
1
NC Probate Fees Order 2004 (SI 2004/3120) (as amended), Fee 8(a).
2
NC Probate Fees Order 2004 (SI 2004/3120) (as amended), Fee 8(b).
3
Secretariat Circular, 15 April 1999.

4.254 Sealed and certified copies of grants and wills may be ordered, if
desired.
4.255 The Non-Contentious Probate Fees Order 2004 (as amended by the
Non-Contentious Probate Fees (Amendment) Order 2014), Fee 8 makes no
distinction between plain, sealed or sealed and certified copies of docu-
ments. Consequently they all attract the same fee. Therefore the fee for a sealed
and certified copy of a grant or will is £10 plus 50p, if applied for with the
application for the grant or £10 for the first copy and 50p for each additional
copy ordered at the same time if requested subsequently. The certified copies
will be sent to the extracting solicitor a few days after the grant has issued. An
exemplification of a grant is certified by the district judge or registrar and
counter signed by the President of the Family Division. The fee for this is £10.

Copies to be received as proof

4.256 Sealed copies of the grant are accepted as evidence of the grant in all
parts of the United Kingdom without further proof1. If produced to a limited
company in England and Wales they are sufficient proof notwithstanding
anything in the articles of the company2. The methods of establishing the
identity of the deceased with the person registered in the books of the company
are unaffected by this system.
1
Senior Courts Act 1981, s 132 (para A1.349).
2
Companies Act 1985, s 187 (8 Halsbury’s Statutes (4th edn) 285).

43
4.257 Probates

HMRC account

4.257 See Chapter 8 as to HMRC accounts.

4.258 With effect from 31 March 2003 it has been possible to draw on funds
in a deceased’s bank and building society accounts to pay inheritance tax
before the grant can be issued. Where the deceased had sufficient funds in the
accounts the bank or building society transfer the amount of inheritance tax
due directly to the HMRC Trusts and Estates, Inheritance Tax. Details of this
scheme may be obtained from Trusts and Estates, Inheritance Tax (see paras
8.62, 8.205 ff).

FEES

Fees on the grant

4.259 The NC Probate Fees Order 2004 (as amended by the NC Probate Fees
(Amendment) Order 2014) sets out the current fee for a grant. A flat fee of
£155 is payable where the assessed value of an estate exceeds £5,000. See
Appendix III, ‘Fees’, para A3.01 ff.
4.260 Exemption of an asset from inheritance tax or capital transfer tax does
not give exemption from court fees unless it is expressly directed by statute or
otherwise.
4.261 At the Principal Registry, all fees in respect of non-contentious business
are paid to the cashier in cash or by solicitor’s or probate practitioner’s crossed
cheque or by debit/credit card; cheque are made payable to ‘HMCS’ or
‘HM Court Service’. Payment is denoted by a machine impression on the
relevant document or on a fee sheet obtained at the Registry.
4.262 Refund of overpaid fees at the Principal Registry is made by cheque.
4.263 Similarly, in the district probate registries and sub-registries all fees are
paid by cheque, or in cash (preferably by crossed cheque payable to ‘HMCS’
or ‘HM Court Service’). For the time being it has not been possible to
introduce payment by debit/credit card.

Remission of probate fees

4.264 The Non-Contentious Probate Fees Order 2004 as amended by the

Non-Contentious Probate Fees (Amendment) Orders 2007, 2008, 2013 and
20141 sets out the criteria in Sch 1A for ascertaining whether a party is entitled
to a remission or part remission of a fee prescribed by the Order. The Lord
Chancellor may on the grounds of financial hardship or for other reasonable
cause remit in whole or in part any fee prescribed by the Order. The
amendment removes the element of discretion which the Order previously
contained and Sch 1A contains a calculator for determining whether the
applicant is entitled to a full remission or part remission. The application for
remission of fees is made at the time when the fee is payable. All requests for
reduction or remission of fees payable in the Principal Registry will be referred
to the manager of the probate department; those made in the district probate

44
 Fees 4.269

registries should be referred to the probate manager.

1
Non-Contentious Probate Fees Order 2004 (SI 2004/3120) as amended by Non-Contentious
Probate Fees (Amendment) Orders 2007, 2008, 2009, 2011, 2013 and 2014, SI 2007/2174, SI
2008/2854, SI 2009/1497, SI 2011/588, SI 2013/1408 and SI 2014/876 included in Appendix
III.

4.265 Where an application for a grant is abandoned and the papers are
withdrawn, it is necessary, on any subsequent application, to lodge fresh
papers with the probate department (London) or district registry and pay full
fees. The district judge or registrar has a discretion to reduce or remit the fee
paid on the former application1. In practice, half the fee is usually returned.
1
NC Probate Fees Order 2004 (SI 2004/3120), art 6(2).

4.266 Where probate of a will is refused (see paras 3.137 ff), but the same
applicant is entitled to a grant in another capacity, it is unnecessary to
withdraw the application; the application may proceed under the fee already
paid1. At the Principal Registry it is important in these circumstances that the
further papers are lodged in the probate department.
1
Senior Registrar’s decision, 1 January 1957.

Estate on which fees are assessed

4.267 The fees payable for the issue of a grant of probate or administration
(or resealing of a grant, as to which, see Chapter 18) are assessed on the
‘assessed value’ being the value of the net real and personal estate (excluding
settled land if any) passing under the grant as shown either in the HMRC
Inheritance Tax account or Capital taxes affidavit, or, where an IHT 205 is
delivered, in the oath (witness statement) to lead the grant1. This provision is
not applicable in the case of those applications specified in Fee No 3 of the
Non-Contentious Probate Fees Order 2004 (SI 2004/3120) as amended by the
Non-Contentious Probate Fees (Amendment) Order 2011 (SI 2011/588), for
which a fixed fee of £20 is provided.
1
NC Probate Fees (Amendment) Order 2014 (SI 2014/876), Fee 1, as interpreted by para 2(b).

4.268 In the case of a person dying domiciled in England and Wales, a grant
issued by a probate registry in England and Wales makes title to the whole of
the estate situated in the United Kingdom (ie in England and Wales, Scotland
and Northern Ireland)1, and all such estate must be disclosed. Probate fees are
accordingly assessed on the assessed value of the whole of the estate in the
United Kingdom.
1
Administration of Estates Act 1971, ss 2 and 3 (see para A1.206).

4.269 A grant in the estate of a person domiciled elsewhere than in England

and Wales makes title to the estate in England and Wales only, and probate fees
are accordingly charged on the assessed value of such estate. Inheritance tax or
capital transfer tax must, however, be paid to the extent to which that tax is
chargeable in respect of property (wheresoever situate) (see Chapter 8).

45
4.270 Probates

Reversionary interests and fees

4.270 The value of all reversionary interests owned by the deceased must be
included in the estate and court fees paid thereon, whether or not inheritance
tax or capital transfer tax is payable in respect of those interests. (See also
paras 4.222 and 4.223.)

Property excluded in assessing fees

4.271 Gratuities granted to the personal representatives of civil servants are

exempt from fees1 but the amount should be included in the amount of the
estate sworn in the oath.
1
NC Probate Fees Order 2004 (SI 2004/3120), para 4.

Members of HM forces and other persons ‘killed in war’

4.272 As regards the estates of members of the armed forces (of whatever
rank), and of certain services associated therewith, where the death occurred
after 11 March 1952, total exemption from estate duty is allowed by the
Finance Act 1952, s 71, provided that the death resulted from wounds,
accident, or disease while on active service, or on other service involving the
same risk: in relation to persons dying after 12 March 1975, s 71 of the
Finance Act 1952 is repealed and replaced by para 1 of Sch 7 to the Finance
Act 1975 as consolidated in the Inheritance Tax Act 1984, s 154, which
provides a similar relief for inheritance tax or capital transfer tax on death.
(For practice, see para 8.176.)
4.273 The Non-Contentious Probate Fees Order 2004 corrects an anomaly in
the Non-Contentious Probate Fees Order 1999 in respect of members of armed
forces of the Crown killed on active service. Paragraph 3 in Sch 1 to the
substantive Fees Order (Special Applications) which is reclassed as 3(1) and the
new Fee 3(2) provides that on an application for a grant in an estate exempt
from s 154 of the Inheritance Tax Act 1984 (exemption for members of the
armed forces etc) the fee with effect from 4 April 2011 shall be £101. The Fees
Order is reproduced in Appendix III of this work.
1
NC Probate Fees (Amendment) Order 2011 (SI 2011/588).

Filing documents
4.274 No fee is charged for filing the will, codicils, oath, or the HMRC
account summary (if any), or for filing affidavits and other documents to lead
an order of the district judge or registrar.

46
 Costs of non-contentious probate proceedings 4.276

COSTS OF NON-CONTENTIOUS PROBATE PROCEEDINGS

Solicitors’ / Probate Practitioners’ charges

4.275 The Rules of the Supreme Court (Non-Contentious Probate Costs)

1956, which applied to all non-contentious or common form probate business
for which instructions were accepted on or after 1 May 1956 were revoked as
from 1 September 19941 and replaced by the Solicitors’ (Non-Contentious
Business) Remuneration Order 1994 (SI 1994/2616), which came into force on
1 November 1994. This in turn was revoked and replaced by the Solicitors’
(Non-Contentious Business) Remuneration Order 2009 (SI 2009/1931)2 with
effect from 11 August 2009 and applies to all non-contentious business for
which bills are delivered on or after that date. The interpretation of ‘solicitor’
in the Order3 includes a recognised body and a licensed body which includes
probate practitioners.
1
Rules of the Supreme Court (Amendment) 1994, SI 1994/1975, r 24.
2
See para A5.01.
3
Solicitors’ (Non-Contentious Business) Remuneration (Amendment) Order 2012 (SI
2012/171).

4.276 Under these new rules there are no fixed items or scales of costs for
extracting a grant, administering an estate, etc. A solicitor is entitled to charge
and be paid1 such sum as may be fair and reasonable (see para 4.277) to both
solicitor and entitled person2, having regard in particular to:
(a) the complexity of the matter or the difficulty or novelty of the questions
raised;
(b) the skill, labour, specialised knowledge and responsibility involved;
(c) the time spent on the business;
(d) the number and importance of the documents prepared or perused,
without regard to length;
(e) the place where and the circumstances in which the business or any part
thereof is transacted;
(f) the amount or value of any money or property involved;
(g) whether any land involved is registered land within the meaning of the
Land Registration Act 2002;
(h) the importance of the matter to the client3; and
(i) the approval (express or implied) of the entitled person3 or the express
approval of the testator to:
(i) the solicitor3 undertaking all or any part of the work giving rise
to the costs, or
(ii) the amount of the costs.
1
The funeral, testamentary and administration expenses are a first charge on the estate of a
deceased person, whether this is solvent or insolvent: Administration of Estates Act 1925,
s 34(3) and Sch 1.
2
‘Entitled person’ means a client or an entitled third party, and ‘entitled third party’ means a
residuary beneficiary absolutely and immediately (and not contingently) entitled to an
inheritance, where a solicitor has charged the estate for his professional costs for acting in the
administration of the estate, and the only personal representatives are: (a) solicitors (whether
or not acting in a professional capacity); (b) solicitors acting jointly with partners, managers
or employees in a professional capacity; (c) employees of a solicitor sole practitioner acting in
that capacity; or (d) managers or employees of a recognised body acting in that capacity.

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4.276 Probates
3
For definitions see the Solicitors’ (Non-Contentious Business) Remuneration Order 2009, art 2
(as amended).

4.277 In determining what is ‘fair and reasonable in the circumstances’, the

sums under art 3 of the Solicitors’ (Non-Contentious Business) Remuneration
Order 2009 can be cumulative, but there should be no overlapping of
allowances. For a large estate, the most important aspect is ‘the nature and
value of the property involved’ and under that heading it is proper to charge
as percentages for successive bands of value, the percentage to reduce as the
value increases. (Maltby v DJ Freeman & Co [1978] 2 All ER 913, [1978] 1
WLR 431: in that case where the estate and number of assets were large, the
appropriate bands and percentages suggested were as follows: up to £11/4
million, 11/2 per cent; from £1/4 million to £1 million, 1/2 per cent; from
£1 million to £21/2 million, 1/6 per cent. It was further suggested that in the case
of a smaller estate, the first rate of 11/2 per cent would be too low.
4.278 In Jemma Trust Co Ltd v Liptrott [2003] ECWA Civ 1476, [2004]
1 All ER 510, [2004] 1 WLR 646 the Court of Appeal held that it was open
to solicitors to charge a scale fee based on the value of the estate as well as for
time spent on administration. Taking into account all the factors in the
Remuneration Order the question to be determined was whether the overall
remuneration was fair and reasonable. The Court suggested the following
guidelines be applied by solicitors: it would be best practice for the solicitor to
obtain the prior agreement as to basis of charges from the executors and
entitled third party; in complicated administrations provide in the terms of
retainer for interim bills to be rendered for payment on account but subject to
reviewing the overall charge at the end of business to ensure that it is fair and
reasonable; charges may be based on value of the estate or the hourly rate or
mixture of these two elements but it is important to ensure clarity to show how
value is taken into account and it is not to be charged twice; if charges are
made by reference to value they should be on a regressive scale; when a
separate element of the charge is based on the value of the estate it would be
helpful to specify the number of hours that it would notionally take to achieve
that amount.
4.279 The Solicitors’ (Non-Contentious Business) Remuneration Order
20091, art 4, provides that a solicitor may take security for payment of any
costs including an amount for interest. Article 5 makes provision for interest
on unpaid costs plus any paid disbursements and value added tax. Unlike the
previous Remuneration Order (Solicitors’ (Non-Contentious Business) Remu-
neration Order 1994) the new Remuneration Order does not contain any
provision for the entitled person to require the solicitor to obtain a remunera-
tion certificate from the Council of the Law Society. This does not affect the
client’s or solicitor’s right to have the solicitor’s bill of costs assessed under
ss 70–72 of the Solicitors Act 1974.
1
See para A5.01.

4.280 Except where the solicitor’s costs have been assessed under the Solici-
tors Act 1974 he must, before bringing proceedings to recover his costs, inform
his client in writing of the latter’s right.

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 Costs of non-contentious probate proceedings 4.287

Assessment of costs

4.281 Proceedings for the assessment (previously taxation) of a solicitor’s bill

of costs under the Solicitors Act 1974 must be commenced in the Se-
nior Courts Costs Office1: for the practice, see the notes under the Solicitors
Act 1974 in Volume 2 of the Civil Procedure Rules.
1
NCPR SI 1987/2024 r 60 excludes assessment in probate matters under the Solicitors Act 1974
from the jurisdiction of district judges or registrars of the Family Division.

4.282 On any assessment of costs it is the duty of the solicitor to satisfy the
taxing master as to the fairness and reasonableness of his charge.

Legal aid and inter parties costs—non-contentious probate applications

4.283 The Community Legal Services funds legal aid costs in non-criminal
(civil) matters. Legal aid is available subject to qualifying financial criteria
from solicitors and advice agencies who have contracted with the Legal
Services Commission. Community Legal Service funding under the Access to
Justice Act 1999 may in certain circumstances be given in respect of non-
contentious probate matters.
4.284 The solicitor must by regulation file the legal aid certificate and, to
obtain payment, lodge his bill of costs for assessment.
4.285 An application for a grant to make title in probate claim will be
regarded as a step in the claim, and the solicitor should file his certificate and
file his bill for assessment in the Division in which the claim is proceeding.
4.286 If proceedings are confined to the Family Division the certificate should
be filed in the probate department at the Principal Registry or at the district
probate registry where the order for assessment of costs was made.
4.287 With effect from 24 February 2003 the following rule was substituted
for NCPR SI 1987/2024 r 60:
60 Costs
(1) Order 62 of the Rules of the Supreme Court 1965 shall not apply to costs in
non-contentious probate matters, and Parts 43, 44 (except rules 44.9 to
44.12), 47 and 48 of the Civil Procedure Rules 1998 (“the 1998 Rules”)
shall apply to costs in those matters, with the modifications contained in
paragraphs (3) to (7) of this rule.
(2) Where detailed assessment of a bill of costs is ordered, it shall be referred—
(a) where the order was made by a district judge, to a district judge, a
costs judge or an authorised court officer within rule 43.2(1)(d)(iii) or
(iv) of the 1998 Rules;
(b) where the order was made by a registrar, to that registrar or, where
this is not possible, in accordance with sub-paragraph (a) above.
(3) Every reference in Parts 43, 44, 47 and 48 of the 1998 Rules to a district
judge shall be construed as referring only to a district judge of the Principal
Registry.
(4) The definition of “costs officer” in rule 43.2(1)(c) of the 1998 Rules shall
have effect as if it included a paragraph reading—
“(iv) a district probate registrar.”

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4.287 Probates

(5) The definition of “authorised court officer” in rule 43.2(1)(d) of the 1998
Rules shall have effect as if paragraphs (i) and (ii) were omitted.
(6) Rule 44.3(2) of the 1998 Rules (costs follow the event) shall not apply.
(7) Rule 47.4(2) of the 1998 Rules shall apply as if after the words “Su-
preme Court Costs Office” there were inserted “, the Principal Registry of
the Family Division or such district probate registry as the court may
specify”.
(8) Except in the case of an appeal against a decision of an authorised court
officer (to which rules 47.20 to 47.23 of the 1998 Rules apply), an appeal
against a decision in assessment proceedings relating to costs in non-
contentious probate matters shall be dealt with in accordance with the
following paragraphs of this rule.
(9) An appeal within paragraph (8) above against a decision made by a district
judge, a costs judge (as defined by rule 43.2(1)(b) of the 1998 Rules) or a
registrar, shall lie to a judge of the High Court.
(10) Part 52 of the 1998 Rules applies to every appeal within paragraph (8)
above, and any reference in Part 52 to a judge or a district judge shall be
taken to include a district judge of the Principal Registry of the Family
Division.
(11) The 1998 Rules shall apply to an appeal to which Part 52 or rules 47.20 to
47.23 of those Rules apply in accordance with paragraph (8) above in the
same way as they apply to any other appeal within Part 52 or rules 47.20 to
47.23 of those Rules as the case may be; accordingly the Rules of the
Supreme Court 1965 and the County Court Rules 1981 shall not apply to
any such appeal.
4.288 The Civil Procedure Rules Parts 42, 44 (except rr 44.9–44.12), 47 and
48 apply to the assessment of costs in non-contentious probate matters. Apart
from events where summary assessment of costs apply every bill of costs and
supporting papers should be lodged in the Registry where the order for
assessment was made. If it is not possible for the registrar to assess the bill it
will be referred to a district judge in the Principal Registry. An appeal against
a decision of the registrar in assessment proceedings lies to a judge of the
High Court. Permission for such appeal is required and may be applied for at
the assessment or by way of notice of appeal to the High Court judge.
4.289 The provisions of RSC Ord 62 continue to apply to costs arising out
proceedings which began before 24 February 2003.

50