We have a situation with an estate. A child of the deceased (who drafted the will) has held the original for a full year beyond the death without applying for probate or providing my client (sibling and probable co-executor) a copy. We’re therefore issuing a subpoena to deliver it up to the Court under s.123 Supreme Court Act / NCPR r50 for the first time and I wondered if anybody could clear up a few questions. So far, there’s no dispute over validity and so there isn’t an ongoing probate action.
(1) The ex parte application to the Registrar requires an affidavit but does it also require a Claim Form, an Application Notice or neither? PD57 para 7.1 says an Application Notice must be served for a witness summons to require attendance but that does not appear to be ex parte and is a different application. Para 7.2 on delivery up of documents is silent on the point.
(2) Can we seek the delivery of the Will to the Probate Registry of the High Court or does it need to be the local registry? We’d prefer the High Court but it may not matter in practice.
(Tristram and other works cover the application but are frustratingly silent on these two.)
(3) Also, does anybody know how we get a copy of the Will once it has been delivered up?
Andrew Goodman
Osborne Clarke LLP