Probate Office Practice Direction
Section 7, Courts Act, 1964: Superior court rules
Practitioners are reminded that in order to stop the Statute of Limitations running against them, civil bills must not only be stamped and issued in the local Circuit Court office but service must also be effected either by a designated summons server or by registered post, as appropriate. Time will continue to run until the civil bill is served. Failure to serve proceedings will therefore result in claims becoming statute-barred.
Litigation and Arbitration Committee
Ad hoc legal aid scheme: cab cases
The Council of the Law Society recently issued a general recommendation to practitioners not to take on new CAB cases where the ad hoc legal aid scheme was to be applied, pending the introduction of an appropriate legal aid fee structure. The Criminal Law Committee is pleased to advise members that a new fee structure has been negotiated with the Department of Justice, Equality and Law Reform, effective from 29 July 1999. The new fees will apply to new CAB cases and to those which are currently under way but where claims have not yet been submitted. Details of the scheme are available from the secretary to the committee.
Criminal Law Committee
Late stamping of instruments
Section 94 of the Finance Act, 1991 provides that where an instument is chargeable with stamp duty, the duty must be paid within 30 days of the first execution thereof. For instruments that are presented for stamping after that time, the following penalties apply:
1. A fixed penalty of 拢20
2. Where the unpaid duty exceeds 拢20, interest at the rate of 1% a month or part thereof
3. Penalty surcharge for the late stamping of:
a) 10% of the unpaid duty where the instrument is presented not later than six months after the date of first execution
b) 20% of the unpaid duty where the instrument is presented not later than 12 months after the date of the first execution, and
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- 30% of the unpaid duty where instrument was stamped more than 12 months after the date upon which it was first executed.
The Revenue Commissioners on a concessionary basis allow an additional 14-day period beyond the statutory 30-day time limit before imposing penalties for late stamping. The former concession whereby the Revenue Commissioners will automatically mitigate the penalty surcharge on the first or second occasion in any calendar year that a solicitor presents a document for late stamping has now been withdrawn by the Revenue Commissioners and no longer applies.
The Revenue Commissioners are empowered by section 15(3) of the Stamp Act, 1989 to remit any penalty payable on stamp duty that they think fit. An application for mitigation of penalty must be made in writing to the Revenue Commissioners following payment of the stamp duty and be supported by documentary evidence where appropriate.
The Revenue Commissioners have indicated that they will consider applications for mitigation on a case-by-case basis, take account of all relevant circumstances giving rise to delays and mitigate the penalty in full or in part if they conclude that to impose the full penalty would be unjust or unreasonable.
A person dissatisfied with the decision or an application for mitigation may have the matter re-examined by a more senior officer, and if the response is still unsatisfactory the matter can be further addressed under the Revenue's internal review procedures where a senior officer who has had no previous involvement with the case will review the papers.
Ultimately, having examined all appeals, if a solicitor feels that a case has not been properly considered, then the matter can be brought to the attention of the Probate, Administration and Taxation Committee of the Law Society.
Probate, Administration and
Taxation Committee
Probate Office practice directions
The following practice directions have been received from the Probate Office.
1. To facilitate the implementation of a new computer system in the Probate Office, practitioners are requested from 1 July 1999 to lodge a copy of the oath (that is, the original and one copy) when lodging papers for a grant. The following existing requirements should also be noted.
i. The heading on all oaths should contain the following information:
a) The name of the deceased and any variations of same
b) the address of the deceased and any former address (particularly an address given in the deceased's will)
c) Occupation of the deceased
ii. The oath should contain the name, address and occupation of the applicant. In any case where the applicant's address differs from that given in the deceased's will, this should be explained in the oath (for example, 'formerly of ...' or 'erroneously stated in will as of')
iii. If oaths are completed by hand, all details should be fully legible
iv. All oaths should contain a full filing clause as this will provide the solicitor's name and address to which the grant is to be posted.
2. Preparation of wills
The following guidelines are suggested for the preparation of wills by word-processors, IBM personal computers, laser printers and so forth. These guidelines have been agreed with the Law Society's Technology Committee.
Wills prepared on single sheets, with writing on one side only, should be bound in the traditional methods. These include:
a) Ribbon or tape
b) Staples covered over by heavy adhesive material
c) Brass eyeletts.
Each page containing written material should be numbered in the following manner. In the case of a will consisting of ten separate sheets with writing on one side of each sheet, each written page should be numbered page 1 of 10, page 2 of 10, and so forth.
The suggested attestation clause would read as follows: 'Signed and acknowledged by the above-named testator as and for his last will and testament in the presence of us both present at the same time who in his presence at his request and in the presence of each other have hereunto subscribed our names as witnesses, this will having been printed on the front side only of the foregoing ten sheets of A4 paper'.
The shortened form of attestation clause may, of course, be used: 'Signed by the testator in the presence of us and signed by us in the presence of the testator'. The statement regarding the content of the will must, of course, be added.
3. Applications cannot be made by post
Practitioners should note that pursuant to order 79, rule 3 of the Rules of the superior courts, applications to the Probate Office for grants must be made personally or through town agents, but cannot be made by post. Applications by post to the district registries is permitted.
4. Engrossment of wills
The Probate Office will accept photostat copies of wills for inclusion in the grant of probate. Where a will is not fully legible, a typed engrossment should be lodged. All copy wills should be certified by the solicitor for the applicant as being a true copy of the original.
5. Charitable bequest forms
Where there are charitable bequests in a will, a charitable bequest form setting out details of such bequests should be lodged with the papers when applying for a grant. These forms are available in the Seat Office of the Probate Office.
6. Order of executors on grant
The Probate Office will follow the order of executors as set out in the will unless requested to do otherwise.
7. Schedule of assets (CA24 A3 and so on)
The Probate Office does not require copies of vouching documents (such as bank statements) to be lodged with the copy schedule of assets. But where a question on the CA24 is answered by stating 'see attached', a copy of the 'attached' document should be lodged. The copy schedule of assets should be certified by the solicitor for the applicant to be a true copy of the original. The original certificate for the High Court should be lodged.
8 Probate motion list
Practitioners are requested to notify the Probate Office by not later than close of business on the Thursday preceding the Monday probate list of any motion in that list which will not be proceeding on that day.
Probate, Administration and Taxation Committee