Probate and Administration in UK Law

We have already made clear our view that the Judge has assessed too low an hourly rate, if he was right to conclude that a valuation element should not appear separately in the bills. If the value element is addressed separately, the Law Society guidance contemplates an uplift factor of 25 – 33% over the expense rate. By adopting KBL's skeleton argument, the Judge gave KBL that rate but no more, at any rate for the years 1994 – 1996.

Starting with the first issue, the title of the Claimant to sue, the Claimant's argument is well made. The re-sealing of a foreign grant of probate is clearly necessary to give effect to the foreign will (see the express terms of Section 2 of the Colonial Probates Act 1892 and authority on wills from other countries such as that in Enobin v Wylie).

In the case of the will subject to Section 2 of the Colonial Probates Act 1892, once that re-sealing has effect, the will is said by the statute to have the same effect as if grant had been made in the English court. That effect is that the will provides the authority for the appointment of the executor, not probate, which is merely the act of proving the will.

Accordingly, the resealing of the will caused the appointment of the executor to have effect as in the United Kingdom as if the will had been proved in the domestic courts. In those circumstances, the principle of Chetty v Chetty applies and the failure to obtain the re-seal probate prior to the issue of proceedings is no bar to the claim, so long as the re-sealing was effected by the time of the trial.

In addressing that question – described by Mr Justice Neuberger as the "second question" – the court must, indeed, weigh the risks of re-instating the solicitor in his (or her) practice against the potentially catastrophic consequences to the solicitor (and the inconvenience, and perhaps real harm, to his or her existing clients) if the intervention continues.

It seems to me clear that, if the present application had been before the court before 2 October 1998, the court would have been obliged to have regard only to national law when construing provisions in the settlement. But now that the Convention has become part of English law paragraph 62 suggests that other considerations are relevant and might even prevail at the stage when the disposition is being construed.