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PROBATE

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Originally appearing in Volume V22, Page 404 of the 1911 Encyclopedia Britannica.
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PROBATE , in See also:

English See also:law, the " proving " (See also:Lat. probatio) of a will. The See also:early See also:jurisdiction of the English ecclesiastical courts over the probate of See also:wills of See also:personality is discussed under WILL. The See also:Court of Probate See also:Act 1857 transferred the jurisdiction both voluntary and contentious of all ecclesiastical, royal See also:peculiar, peculiar and manorial courts to the court of probate thereby constituted, created a See also:judge and registrars of that court, abolished the old exclusive rights in testamentary matters of the See also:advocates of Doctors' See also:Commons, and laid down rules of See also:procedure. Contentious jurisdiction was given to See also:county courts when the See also:personal See also:estate of the deceased was under £20o in value. The Judicature Act 1873 merged the old court of probate in the probate See also:divorce and See also:admiralty See also:division of the High Court of See also:Justice. The division now consists of the See also:president and one other judge. The practice of the division is mainly regulated by the rules of the Supreme Court 1883. Appeals See also:lie to the court of See also:appeal and thence to the See also:House of Lords. Probate may be taken out either in See also:common or See also:solemn See also:form. In the former See also:case, which is adopted when there is no dispute as to the validity of the will, the court simply recognizes the will propounded as the last will of the deceased. This formality is necessary to enable the executor to administer the estate of his testator. Probate in this form is granted simply as a ministerial act if the See also:attestation clause declares that the formalities of the Wills Act have been complied with, or if other See also:evidence to that effect is produced.

Such See also:

grant is liable to revocation, but it is provided that any See also:person dealing with an executor on the faith of a grant of probate in common, form, shall not be prejudiced by its revocation. The executor may within See also:thirty years be called upon to prove in solemn form, or a person whe doubts the validity of the will propounded may enter a See also:caveat which prevents the executor proving for six months and the caveat may be renewed each six months. The executor may however take out a See also:summons to get the caveat " subducted " or withdrawn, but if an See also:appearance to the summons is entered 9 These See also:initials do not apply to certain passages in the above See also:article, namely, the greater See also:part of paragraphs 41, 52, 62 and 72, and almost the whole of the 4th See also:section of Part. I. (pars. 76-93), which have been adopted from the article " See also:Probability " in the 9th edition of the Ency. Brit., written by See also:Professor See also:Morgan Crofton. within six days to the summons the executor is then compelled to prove in solemn form. Probate in solemn form is a See also:judgment of the court in favour of the will propounded, and is only revocable by the See also:discovery of a later will. In See also:order, therefore, to obtain such grant proceedings have to be taken by See also:action, and witnesses produced in support of the will, and the action proceeds in the usual way. The See also:principal rules now obtaining as to probate are these. Probate, which since the See also:Land See also:Transfer Act 1897 must be taken out for wills of realty as well as wills of personalty, may be granted either in the principal or in a See also:district registry, and should be obtained within six months after the testator's See also:death.

When no executor is named the will is not now invalid, as was once the case, but See also:

administration cum testamento annexo is granted. The same course is pursued where the executor renounces or See also:dies intestate before administering the estate of the deceased. After probate, the probate itself (as the See also:official copy of the will is called) becomes evidence, the See also:original will being deposited in the principal registry at See also:Somerset House, See also:London. On grant of probate, estate See also:duty, denoted by a See also:stamp on the See also:affidavit sworn for that purpose, is payable. It varies according to the amount at which the estate of the deceased is fixed by the See also:oath of the executor (see ESTATE DUTY). The act of 1881 enables any officer of inland See also:revenue to grant probate where the personal estate does not exceed £300. See also:Ireland.—In 1867 an act on lines similar to the English act was passed for Ireland and under the Irish Judicature Act of 1877 the then existing court of probate was merged in the High Court of Justice. See also:Scotland.—See also:Confirmation includes both the probate and letters of administration of English procedure. Without confirmation by the court interference by the executor becomes a vitious intro-See also:mission. Originally confirmation of testaments of movables See also:fell, as in See also:England, under the See also:cognizance of the See also:church courts. Such jurisdiction certainly existed at the See also:time of regiam majestatem. This ecclesiastical right continued through the See also:commissary court at See also:Edinburgh (constituted by See also:Queen See also:Mary in 1563), and the See also:local commissaries, until See also:modern times when the jurisdiction of the courts was at first transferred and then abolished by a See also:series of enactments from the Commissary Courts Act 1823 to the See also:Sheriff Courts Act 1876.

The act of 1823 placed the commissary jurisdiction in the sheriff courts; by the act of 1876 the sheriffs sit as sheriffs in testamentary matters, no longer as commissaries. Confirmation of wills where the whole estate is under £30o is regulated by the Customs and Inland Revenue Act 1881 and other acts. An eik is an addition to a confirmation made on discovery of additional effects of the deceased after confirmation. See also:

United States.—Probate is granted in some states by the See also:ordinary See also:chancery or common law courts, but more frequently by courts of See also:special jurisdiction, such as the See also:prerogative court in New See also:Jersey, the surrogates' court in New See also:York, the orphans' court in See also:Pennsylvania. " In a See also:great See also:majority of the states the original equitable jurisdiction over administrations is in all ordinary cases—without any special circumstances such as See also:fraud, or 'without any other equitable feature such as See also:trust—either expressly or practically abrogated. The courts of See also:equity, in the See also:absence of such special circumstances or distinctively equitable features, either do not possess or will not exercise the jurisdiction, but leave the whole See also:matter of administrations to the special probate tribunals " . . . so that " unless the case involves some special feature or exceptional circumstances of themselves warranting the interference of equity, such as fraud, See also:waste, and the like, or unless it is of such an essential nature that a - probate court is incompetent to give adequate See also:relief, or is one of which the probate court having taken cognizance has completely miscarried and failed to do justice by its See also:decree, the courts of equity will refuse to interpose and to exercise whatever dormant See also:powers they may possess, but will leave the subject matter and the parties to the statutory See also:forum which the legislature plainly regarded as sufficient and intended to be practically exclusive " (See also:Rice's Probate Law, pp. 4 and 5). Probate courts are in most if not all the states courts of See also:record, having a public See also:seal and a clerk (or the judge has authority to act as clerk) ; they issue See also:process and execute their decrees by appropriate See also:officers in the same manner as the common law and chancery courts. They sit at stated terms. They have See also:power to punish for contempt, and to compel obedience to their orders and decrees, and their judgments upon matters within their jurisdiction are enforced usually by the same means as commonlaw and chancery courts (Noemen's Law of Administration, § 145). Jurisdiction as to wills and their probate as such is neither included in nor excepted out of the grant of judicial power to the courts of the United States (i.e. the Federal as distinguished from the See also:state courts).

So far as it is ex parte and merely administrative it is not conferred, and it cannot be exercised by them at all until in a case at law or in equity _its exercise becomes necessary to See also:

settle a controversy by See also:reason of the (diverse) citizenship of the parties. An action to set aside the probate of a will of real estate may be maintained in a Federal court when the parties on one See also:side are citizens of a different state from the parties on the other side (See also:Ellis v. See also:Davis, 1o9 U.S. Reports, 485). Probate in solemn form, i.e. after due See also:notice to all parties. in See also:interest is the almost universal form in use in the United States. One reason for this no doubt is that all documents affecting See also:title to real estate must be recorded and probate in solemn form concludes all parties to the proceeding and thus tends to establish the title to all real estate passing under the will. In the United States wills of real See also:property must be separately proven in the proper probate court in each state in which the real property is situated, unless See also:statute dispenses with See also:separate probate (each state being " See also:foreign " to every other for this purpose). Copies of such will and probate should be filed also in the See also:office of the See also:register of deeds of each county in the state in which any real property belonging to the testator is situated. In the state of New Jersey it has been held that an unprobated will is capable of conveying an interest in the property devised, and when a See also:conveyance is made under a power in the will before probate a subsequent probate validates the conveyance (1906, Mackey v. Mackey, 63 Atl. See also:Rep. 984).

In See also:

Illinois a court of equity has no inherent power to entertain a See also:bill to contest a will (1906; O'Brien v. Bonfield, 220 See also:Ill. Rep. 219). In See also:Missouri a foreign (New York) will of real estate in Missouri, probate of which was duly recorded in Missouri, cannot be collaterally attacked, and cannot be set aside by See also:direct proceeding after being filed for record more than five years in Missouri (1907; See also:Cohen v. See also:Herbert, 104 So. W. Rep. 84).

End of Article: PROBATE

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