RULES AND ORDERS AND TABLES OF FEES, Dated JULY 30, 1862, Made by the JUDGE OF THE COURT OF PROBATE, WITH THE CONCURRENCE OF THE LORD CHANCELLOR, &c., AND WITH THE APPROVAL OF THE TREASURY AS TO FEES FOR HER MAJESTY'S COURT OF PROBATE UNDER THE COURT OF PROBATE ACT, 1857 (20 & 21 VICT. C. 77), AND THE COURT OF PROBATE ACT, 1858 (21 & 22 VICT. C. 95) IN RESPECT OF CONTENTIOUS BUSINESS.
| Jurisdiction | UK Non-devolved |
| Citation | SI 1862/5002 |
| Year | 1862 |
1862 Unnumbered
SUPREME COURT, ENGLAND
B. Probate Rules
(a) Contentious Business
RULES AND ORDERS AND TABLES OF FEES, DATED JULY 30, 1862, MADE BY THE JUDGE OF THE COURT OF PROBATE, WITH THE CONCURRENCE OF THE LORD CHANCELLOR, &C., AND WITH THE APPROVAL OF THE TREASURY AS TO FEES FOR HER MAJESTY'S COURT OF PROBATE UNDER THE COURT OF PROBATE ACT, 1857 (20 & 21 VICT. C. 77), AND THE COURT OF PROBATE ACT, 1858 (21 & 22 VICT. C. 95) IN RESPECT OF CONTENTIOUS BUSINESS.[These Rules are printed as amended by Rules, dated December 29, 1865, March 2, 1874 (S.R. & O. Rev. (1st Edn.) Vol. 7, pp. 557-9) and March 1, 1875 (S.R. & O. 1900, p. 1064).]
[The Rules of 1862 came into force on September 1, 1862.]
By virtue and in pursuance of the provisions of the Statute 20 & 21 Victoria, chapter 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 and Orders heretofore made concerning the procedure and practice of the said Court of Probate in respect of contentious business, and all tables of fees heretofore fixed and published in respect thereof, and in lieu of the said Rules and Orders, do, with the concurrence aforesaid, make and issue the following Rules and Orders in respect of contentious business in the said Court of Probate, 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 16th day of June, 1862, do hereby fix the annexed amended table of fees to be taken by the officers of the said Court of Probate and the practitioners therein in respect of the matters aforesaid.
Westbury, C.
A. E. Cockburn.
C. Cresswell.
Dated this 30th day of July, 1862.
1. All Rules and Orders heretofore made and issued in respect of contentious business shall be repealed on and after the first day of September, 1862, except so far as concerns any matters or things done in accordance with them prior to the said day.
(a) The Court of Probate Act, 1857.
2. The following Rules and Orders in respect of contentious business shall take effect on and after the first day of September, 1862.
CONTENTIOUS BUSINESS
3. All proceedings in the Court of Probate or in the registries thereof in respect of business not included in the Court of Probate Act, 1857, under the expression "Common Form business," except the warning of caveats, shall be deemed to be contentious business.
PARTIES TO CAUSES
4. Executors or other parties who, previously to the passing of the Court of Probate Act, 1857, might prove wills in solemn form of law, shall be at liberty to prove wills under similar circumstances, and with the same privileges, liabilities, and effect as heretofore.
5. Next of kin and others who, previously to the passing of the said Act, had a right to put executors or parties entitled to administration with will annexed upon proof of a will in solemn form of law, shall continue to possess the same rights and privileges, and be subject to the same liabilities with respect to costs as heretofore.
6.(a) Parties who previously to the passing of the said Act had a right to intervene in a cause may do so, with leave of the Judge or one of the registrars, obtained by order on summons, subject to the same limitations and the same rules with respect to costs as heretofore.
CAVEATS
7. Caveats may be entered in the principal registry of the Court of Probate or in a district registry thereof; if in the principal registry the person entering the caveat must insert the name of the deceased in the index to the caveat book.
8. A caveat shall bear date on the day it is entered, and shall remain in force for the space of six months, and then expire and be of no effect, but may be renewed from time to time.
9. Caveats shall be warned from the principal registry. The warning is to be served by leaving the same or a true copy thereof at the place mentioned in the caveat as the address of the person who entered it.
10. It shall be sufficient for the warning of a caveat that a registrar send by the public post a warning signed by himself, and directed to the person who entered it, at the address mentioned in it.
(a) See Order XII, Rule 23, of the Rules of the Supreme Court.
11. The warning to a caveat is to state the name and interest of the party on whose behalf the same is issued, and if such person claims under a will or codicil, is also to state the date of such will or codicil, and must be accompanied by an address within three miles of the General Post Office at which any notice requiring service may be left. The form of warning will be supplied in the registry.
12. Upon an appearance being entered in answer to the warning of a caveat, the matter shall be entered as a cause in the court book, and the contentious business shall thereupon be held to commence, and the expenses of the entry of such caveat and the warning thereof shall, upon taxation, be considered as costs in the cause.
CITATIONS
13. Citations can only be extracted from the principal registry, and no citation is to be issued under seal until an affidavit in verification of the averments it contains has been filed in the registry.
14. When a party proposes to prove a will or codicil in solemn form of law, and no caveat has been entered, or a caveat has been entered and no appearance given to the warning thereof the contentious business shall be held to commence with the extracting of a citation in the Forms Nos. 1 and 2, or in some similar form.
15. Before a citation is signed by the registrar a caveat shall be entered against any grant being made in respect of the estate and effects of the deceased to which such citation relates, and notice thereof shall be sent to the registrar of any district in which the deceased appears to have had a residence at the time of his death. Such caveat is to be renewed from time to time so as to be kept in force so long as the proceedings arising from the service of the citation are pending. This Rule is not to apply to citations to exhibit an inventory, and to render an account, nor to citations to show cause why a bond should not be assigned in order to its being enforced against the sureties.
16. Citations to see proceedings may be extracted from the registry on the application of any party to the cause. A Form is given, No. 4.
17. Every citation shall be written or printed on parchment, and the party extracting the same, or his proctor, solicitor, or attorney, shall take it, together with a praecipe, a Form of which is given, marked No. 5, to the registry, and there deposit the praecipe, and get the citation signed and sealed. The address given in the praecipe must be within three miles of the General Post Office.
18. Citations are to be served personally when that can be done, the party cited being resident in Great Britain or Ireland, but if personal service cannot be effected the direction of the Judge or registrars as to the mode of service must be obtained. Personal service shall be effected by leaving a true copy of the citation with the party cited, and showing such party the original, if required by him so to do.
19. Citations may be served upon parties resident out of Great Britain and England by the insertion of the same or of an abstract thereof, settled and signed by one of the registrars, as an advertisement, in such of the morning and evening London newspapers, and if necessary in such local newspapers, and at such intervals as the Judge or a registrar may direct; Provided that in any case the Judge or a registrar may direct a citation to be served personally. If the party cited be abroad, having an agent resident in England, such agent must be served with a true copy of the citation.
20. Before a party can proceed after the service of a citation, an appearance must have been entered by or on behalf of the party cited, or an affidavit of personal service, and of non-appearance must, together with the citation, have been filed in the registry, or if personal service has not been duly effected, the order of the Judge, or of one of the registrars in his absence, founded on an affidavit, and giving leave to proceed, must have been obtained. In case the citation has been advertised, the newspapers containing the advertisement, together with the citation and an affidavit of non-appearance, must be filed in the registry.
21. The above Rules so far as they relate to the service of citations are to apply to the service of all other instruments requiring personal service.
22. If contentious proceedings arise from the service of a citation, the expense of the citation and service thereof shall, upon taxation, be considered as costs in the cause.
SUITS IN FORMA PAUPERIS
23. Any person desirous of prosecuting a suit in forma pauperis is to lay a case before counsel, and obtain an opinion that he or she has reasonable grounds for proceeding.
24. No person shall be admitted to prosecute a suit in forma pauperis without the order of the Judge; and to obtain such order, the case laid before counsel, and his opinion thereon, with an affidavit of the party, or of his or her proctor, solicitor, or attorney that the said case contains a full and true statement of all the material facts, to the best of his or her knowledge and belief, and an affidavit by the party applying that he or she is not worth £25 after payment of his or her just debts, save and except his or her wearing apparel, shall be produced at the time such application is made.
25. Where a pauper omits to proceed to trial, pursuant to notice, he or she may be called upon by summons to show cause why he or she should not pay costs, though he or she has not been dispaupered, and why all future proceedings...
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