Rule 74.14(2): Short-Cut to Probate

July 24, 2008 Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , 0 Comments

There seems to be a rule for every situation in estates litigation.  Consider the oft-ignored Rule 74.14(2), the short-cut to probate rule.

Probate applications are refused where the application material raises legal issues.  Normally, the next step is to bring a motion for directions to have a judge rule on the legal issues raised by the application.  There is arguably no such thing as a "simple will"; even a modest estate can give rise to issues of the highest level of complexity.  Preparing motion materials for interpretation of a "simple will" can therefore be disproportionately expensive.

Can Rule 74.14(2) can apply to avoid the need for drafting motion materials?  Rule 74.14(2) states:

"Where, in the opinion of the registrar, the application and accompanying material are not complete or contain information on which the registrar has a doubt, the application shall be referred to a judge for determination."

The qualifying conditions for referral to a judge can be interpreted quite broadly.  The key to this provision is the absence of any requirement to bring a motion.  It would seem that a letter to the registrar is sufficient, citing this rule and requesting the matter be referred to a judge.  Of course, unanimity among the parties to the probate application is probably required, though not explicitly stated in the rule.  It probably also helps to be polite, since the language of Rule 74.14(2) is discretionary.

This useful rule is unlikely to be the subject of substantial litigation, since where an estate can bear litigation expenses, the usual course of a Rule 74.15 motion for an Order for assistance, or a motion or application for directions under Rule 75.06 will be preferred.   

Have a great day,

Chris Graham

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