For various reasons, a legal personal representative may not progress the administration of an estate and take out a Grant of Representation. This can lead to frustration from beneficiaries who are delayed in receiving their benefit from the estate. Where a legal personal representative of an estate is unable or unwilling to prove a will, there are different means by which a beneficiary can require them to extract a grant of probate or to have another administrator appointed.

Passing Over versus Citation procedure

In the first instance, under Section 27(4) of the Succession Act 1965 (Section 27(4)), an application can be made to the High Court to appoint an administrator over an estate “by reason of any special circumstance”. This usually occurs where the person next entitled to extract a grant is unable, unwilling or incapable of doing so, or where the entitled person cannot be located. The Court must be satisfied that it is necessary or expedient to grant the application.

Section 27(4) Process:

1. File the Motion Papers with the High Court to include a grounding affidavit which addresses the background facts and circumstances of the case. The Affidavit should demonstrate the reason for:
   -The necessity of the grant (why it would be just and expedient)
   -The special circumstances (why the person entitled is unable to extract the grant)
   -The proposed applicant being the appropriate person to extract the grant.
2. Lodge a plain copy of the will.
3. Applications are heard by a Judge who decides whether is it necessary to appoint an administrator.
4. The administrator has no entitlement to administer the estate until such time as a grant is applied for and extracted in the relevant estate.

Alternatively, a citation may be entered against the executor under Order 79 rules 52 to 58 RSC, requiring him or her to prove the will. This is a document issued by a beneficiary or someone else with an interest in an estate (such as a creditor) requiring the executor to prove the will by taking out a grant of probate.

Citation Process:

1. Enter a Caveat (this is a formal warning that nothing is to be done in relation to a grant of probate without the lodging party being put on notice).
2. Lodge the Grounding Affidavit with the Probate Office setting out the circumstances of the case and the interest of the person lodging the Grounding Affidavit in the estate.
3. Order made for Citation to issue.
4. One copy of the Order is signed and sealed by Probate Office. This version becomes the original document.  
5. One copy of the Order is served personally on the person to whom the citation relates (the Citee)
6. The Citee has 14 days to enter an appearance
7. If no appearance is entered, the lodging party can obtain a side bar order deeming the Citee to have renounced their right to prove the will.
8. If an appearance is entered, the lodging party can obtain a side bar order to direct the Citee to prove the will within 14 days
9. In default, the Probate Office can make a side bar order deeming the Citee to have renounced

Comparison:

It is noteworthy that the main difference between these two processes is that the Section 27(4) Process is by way of court application and requires special circumstances to be proven in order to grant the application.

In the Matter of the Estate of Mary Ann (Otherwise Maureen) Horan Deceased And in the Matter of Section 27 (4) of the Succession Act, 1965 [2020] IEHC 21 an application was made under Section 27(4) to pass over the executor on the basis that he failed to take out a grant of probate.Mr.Justice McDonald noted that the Court must consider whether there are sufficiently weighty matters of concern to make it either expedient or necessary to intervene. In this instance, it was decided that the circumstances were sufficiently special in order for a person other than the executor to be appointed and granted an order under Section 27(4).

The significant delay in taking out the grant of probate, the absence of a satisfactory explanation for the delay and the inexplicable failure to answer reasonable correspondence from the plaintiffs was relevant in coming to this determination. The absence of a satisfactory explanation for erroneously informing the applicant’s solicitor that he could not take out a grant of probate until he received a dismissal order in relation to the wardship was also relevant.

Contrastingly, in John Casey v Yvonne Casey and Michelle Casey [2023] IEHC 643 the Judge refused to pass over the executrices of the will and to appoint an independent person to act as legal personal representative.  In this case, the applicant had lodged a caveat, preventing the Probate Office from issuing the grant. The applicant then made a Section 27(4) application on the basis that the executrices delayed in extracting the grant of probate, failed to protect the assets of the estate and were unfit to act as executrices. Ms. Justice Stack noted that the ‘special circumstances’ to pass over an executor should be sufficiently serious in nature to justify a departure from the testator’s wishes, such as not being fit to act, a material conflict of interest with the estate, or being unable or unwilling to act. Ms. Justice Stack was satisfied that there was no undue delay in lodging the application and that the executrices had not shown themselves to be unwilling to carry out their duties and refused the application.

Conclusion

Where applications pursuant to Section 27(4) requires establishing special circumstances, they inevitably involve a degree of subjectivity and uncertainty as to outcome. While they can provide finality and the comfort of a High Court order, where the process is progressed by way of High Court motion, it will involve a significant degree of costs.

The proofs required for the citation process are more objective. Where a citation is progressed via a paper application to the Probate Office it can be more cost effective. However, if the conclusion of the process is that the Citee does not prove the will, the applicant will have to bring a separate application to prove the will to progress the administration of the estate.

If you have any questions about contentious probate matters please contact Michael Kelly (mjkelly@hayes-solicitors.ie) or Owen Burke (oburke@hayes-solicitors.ie).