SUPREME COURT RULES 1970 - SECT 78.5 Commencement of proceedings by creditor

SUPREME COURT RULES 1970 - SECT 78.5

78.5 Commencement of proceedings by creditor

(cf former Part 78, rule 33)

(1) This rule applies to proceedings for the grant of administration that are commenced by a creditor of the deceased under section 63, 74 or 75 of the Probate and Administration Act 1898 .

(2) If a creditor knows that the deceased has left a will naming an executor, and that the executor has not renounced probate, the creditor may commence proceedings for the grant of administration if and only if--

(a) the creditor has filed, and served on the executor, a notice requiring the executor to apply for probate, and

(b) the executor has failed to comply with the notice.

(3) If a creditor knows that the deceased has left a will, and that either the will does not name an executor or that each named executor has renounced probate, the creditor may commence proceedings for the grant of administration if and only if--

(a) the creditor has filed, and served on--

(i) each beneficiary under the will, and

(ii) in the case of a partial intestacy, each person who, pursuant to section 63 (a), (b) or (c) of the Probate and Administration Act 1898 , is eligible to be granted administration of the deceased's estate on intestacy,

a notice requiring a beneficiary or person so eligible, as the case may be, to apply for the grant of administration, and

(b) each person on whom such a notice has been served has failed to comply with the notice.

(4) A notice under subrule (3) need not be served on a named executor under the will if the executor has renounced probate, unless the Court so orders.

(5) If a creditor knows that the deceased has not left a will or is unsure as to whether or not the deceased has left a will, the creditor may commence proceedings for the grant of administration if and only if--

(a) the creditor has filed, and served on each person who, pursuant to section 63 (a), (b) or (c) of the Probate and Administration Act 1898 , is eligible to be granted administration of the deceased's estate on intestacy, a notice requiring a person so eligible to apply for the grant of administration, and

(b) each person on whom such a notice has been served has failed to comply with the notice.

(6) The affidavit in support of a creditor's application for the grant of administration must include--

(a) proof of the deceased's debt to the creditor, and

(b) evidence as to the creditor's knowledge of the matters referred to in subrule (2), (3) or (5), as the case requires, and

(c) a statement indicating the steps taken by the creditor for the purpose of complying with the requirements of this rule.