RULES, ORDERS, AND INSTRUCTIONS FOR THE REGISTRARS OF THE DISTRICT REGISTRIES OF THE COURT OF PROBATE, Dated January 27, 1863, Made by the JUDGE OF THE COURT OF PROBATE WITH THE CONCURRENCE OF THE LORD CHANCELLOR, AND OF THE LORD CHIEF JUSTICE, UNDER THE COURT OF PROBATE ACT, 1857 (20 & 21 VICT. C. 77) AND THE COURT OF PROBATE ACT, 1858 (21 & 22 VICT. C. 95).
| Year | 1863 |
1863 Unnumbered
SUPREME COURT, ENGLAND
(2) District Registries
RULES, ORDERS, AND INSTRUCTIONS FOR THE REGISTRARS OF THE DISTRICT REGISTRIES OF THE COURT OF PROBATE, DATED JANUARY 27, 1863, MADE BY THE JUDGE OF THE COURT OF PROBATE WITH THE CONCURRENCE OF THE LORD CHANCELLOR, AND OF THE LORD CHIEF JUSTICE, UNDER THE COURT OF PROBATE ACT, 1857 (20 & 21 VICT. C. 77) AND THE COURT OF PROBATE ACT, 1858 (21 & 22 VICT. C. 95).[These Rules, Orders and Instructions (S.R. & O. Rev. 1904, XII, "Supreme Court, E.," p. 829) are printed as amended by Rules, dated January 14, 1871, March 21, 1882, March 29, 1887, August 1, 1894, December 11, 1896 (S.R. & O. 1896 (No. 1095) p. 584), November 20, 1897 (S.R. & O. 1897 (No. 867) p. 612), January 24, 1921 (S.R. & O. 1921 (No. 649) p. 1287), December 3, 1925 (S.R. & O. 1925 (No. 1231) p. 1539), April 26, 1934 (S.R. & O. 1934 (No. 366) II, p. 604), October 25, 1939 (S.R. & O. 1939 (No. 1514) II, p. 3123), June 25, 1943 (S.R. & O. 1943 (No. 897) I, p. 936), September 13, 1944 (S.R. & O. 1944 (No. 1029) I, p. 978), July 2, 1947 (S.R. & O. 1947 (No. 1393) I, p. 2084), May 5, 1949 (S.I. 1949 (No. 876) I, p. 4013) and February 13, 1950 (S.I. 1950 (No. 287) II, p. 981).]
By virtue and in pursuance of the provisions of the statute 20 & 21 Vict. c. 77,(a) I, the Right Honourable Sir Cresswell Cresswell, Knight, Judge of Her Majesty's Court of Probate, with the concurrence of the Right Honourable Richard Lord Westbury, Lord High Chancellor of Great Britain, and of the Right Honourable Sir Alexander James Edmund Cockburn, Baronet, Lord Chief Justice of the Court of Queen's Bench, do repeal all the Rules, Orders, and Instructions heretofore made and issued to the registrars of the district registries of the said Court of Probate in respect of non-contentious business, and as to personal applications for grants of probate and letters of administration, and also all tables of fees heretofore fixed and published in respect thereof, and in lieu of the said Rules, Orders, and Instructions, do, with the concurrence aforesaid, make and issue the following Rules, Orders, and Instructions for the registrars of the district registries of the said Court in respect to non-contentious business, and as to personal applications for grants of probate and letters of administration, and with the concurrence aforesaid, and with the approval of the Lords Commissioners of Her Majesty's Treasury, signified to me by letter dated the sixteenth day of January, one thousand eight hundred and sixty-three, do hereby fix the annexed amended tables of fees to be taken by the officers of the said Court of Probate in the district registries thereof, and by the practitioners in the said Court in respect of the matters aforesaid.
Dated this twenty-seventh day of January, one thousand eight hundred and sixty-three.
Westbury, C.
A. E. Cockburn.
C. Cresswell.
All Rules, Orders, and Instructions heretofore made and issued for the district registrars of Her Majesty's Court of Probate in respect of non-contentious business shall be repealed on and after the 2nd day of March, 1863, except so far as concerns any matters or things done in accordance with them prior to the said day.
The following Rules, Orders, and Instructions in respect of non-contentious business shall take effect on and after the 2nd day of March, 1863.
Non-contentious business shall include all common form business as defined by the Court of Probate Act, 1857, and the warning of caveats.
(a) The Court of Probate Act, 1857.
1. Application for probate or letters of administration may be made at the principal registry in all cases. Application may also be made at a district registry in cases where the deceased, at the time of his death, had a fixed place of abode within the district in which the application is made, and not otherwise.
2. Such applications may be made through a proctor, solicitor, or attorney, or in person by executors and parties entitled to grants of administration.
3. The district registrar, before he entertains an application for probate or letters of administration, must ascertain that the deceased had, at the time of his death, a fixed place of abode within his district.
4. The district registrar is not to allow probate or letters of administration to issue until all the inquiries which he may see fit to institute have been answered to his satisfaction, and this refers more particularly to applications made in person by executors and others. The district registrar is notwithstanding to afford as great facility for the obtaining grants of probate or administration as is consistent with a due regard to the prevention of error or fraud.
5. No district registrar or clerk in a district registry shall directly or indirectly transact business for himself or as the proctor or solicitor of any other person in the district registry to which he has been appointed.
AS TO PROBATE OF WILLS AND CODICILS AND LETTERS OF ADMINISTRATION WITH THE WILL [OR WILLS AND CODICILS] ANNEXED, WHERE THE WILLS AND CODICILS ARE DATED AFTER 31ST DECEMBER, 1837.
EXECUTION OF A WILL
6. Upon receiving an application for probate or letters of administration with the will annexed, the district registrar must inspect the will and each codicil, and see whether by the terms of the attestation clause (if any) it is shown that the same have been executed in accordance with the provisions of statutes 1 Vict. c. 26(a) and 15 Vict. c. 24.(b)
7. If there be no attestation clause to a will or codicil presented for probate, or if the attestation clause thereto be insufficient, the district registrar must require an affidavit from at least one of the subscribing witnesses, if they or either of them be living, to prove that the provisions of 1 Vict. c. 26, s. 9, and 15 Vict. c. 24, in reference to the execution, were in fact complied with.(c)
7A. The practice of registering affidavits shall be discontinued, and, in lieu thereof, a note signed by the district registrar shall be inserted on the engrossed copy will or codicil annexed to the probate or letters of administration, and registered, to the effect that affidavits of due execution, of domicil, or as the case may be, have been filed: Provided, that in cases presenting difficulty the affidavits themselves may still be registered with the consent of a registrar of the principal registry.(c)
(a) The Wills Act, 1837 (7 Will. 4 & 1 Vict. c. 26).
(b) The Wills Act Amendment Act, 1852 (15 & 16 Vict. c. 24).
(c) Rules 7 and 7A as substituted by the Rule of 1871.
8. If on perusing the affidavits of both the subscribing witnesses it appear that the requirements of the statute were not complied with, the district registrar must refuse probate.
9. If on perusing the affidavit or affidavits setting forth the facts of the case, it appear doubtful whether the will or codicil has been duly executed, the district registrar must transmit a statement of the matter to the registrars of the principal registry, who may require the parties to bring the matter before the Judge on motion.
10. If both the subscribing witnesses are dead, or if from other circumstances no affidavit can be obtained from either of them, resort must be had to other persons (if any) who may have been present at the execution of the will or codicil; but if no affidavit of any such other person can be obtained, evidence on affidavit must be procured of that fact and of the handwriting of the deceased and the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of the due execution.
INTERLINEATIONS AND ALTERATIONS
11. Interlineations and alterations are invalid unless they existed in the will at the time of its execution, or, if made afterwards, unless they have been executed and attested in the mode required by the statute, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto.
12. When interlineations or alterations appear in the will (unless duly executed, or recited in or otherwise identified by the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution must be filed, except when the alterations are merely verbal, or when they are of but small importance and are evidenced by the initials of the attesting witnesses.
ERASURES AND OBLITERATIONS
13. Erasures and obliterations are not to prevail unless proved to have existed in the will at the time of its execution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto. If no satisfactory evidence can be adduced as to the time when such erasures and obliterations were made, and the words erased or obliterated be not entirely effaced, but can upon inspection of the paper be ascertained, they must form part of the probate.
14. In every case of words having been erased or obliterated which might have been of importance, an affidavit must be required.
DEEDS, &C., REFERRED TO IN A WILL
15. If a will contain a reference to any deed, paper, memorandum, or other document of such a nature as to raise a question whether it ought or ought not to form a constituent part of the will, the production of such deed, paper, memorandum, or other document must be required, with a view to ascertain whether it be entitled to probate; and, if not produced, its non-production must be accounted for.
16. No deed, paper, memorandum, or other document can form part of a will unless it was in existence at the time when the will was executed.
APPEARANCE OF THE PAPER
17. If there are any vestiges of sealing wax or wafers or other marks upon the testamentary papers leading to the inference that a paper, memorandum, or other document has been annexed or attached to the same, they must be satisfactorily...
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