SUPREME COURT RULES 1970 - SECT 78.71 Order that caveat cease to be in force

SUPREME COURT RULES 1970 - SECT 78.71

78.71 Order that caveat cease to be in force

(cf former Part 78, rule 69)

(1) If--

(a) a person has applied or intends to apply for the grant of probate or administration or the resealing of a foreign grant, and

(b) a caveat under this Division is in force in respect of any grant of probate or administration, or resealing of a foreign grant, being made in respect of the estate concerned,

the person may apply for an order that the caveat cease to be in force in relation to the application or intended application.

(2) An application under this rule must be made--

(a) except as provided by paragraph (b), by summons, or

(b) if the person has commenced proceedings for the grant of probate or administration, or the resealing of a foreign grant, by notice of motion in the proceedings.

(3) The caveator must be joined as a defendant in the proceedings on an application under this rule.

(4) If the Court considers that the evidence fails to show--

(a) that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and

(b) that there is a doubt as to whether the grant of probate or administration should be made or whether the foreign grant should be resealed,

the Court may order that the caveat cease to be in force in respect of the application.

(5) Part 13 of the Uniform Civil Procedure Rules 2005 does not apply to the proceedings.

(6) If it does not order that the caveat cease to be in force in respect of the application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of proceedings on the application, or intended application.

(7) Directions that the Court may give pursuant to subrule (6) include a direction to the caveator to commence proceedings.

(8) If the Court directs the caveator to commence proceedings, it may order that if the caveator does not commence proceedings within such time as the Court fixes, the caveat is to lapse, either generally or in respect of the application or intended application.

(9) An order under subrule (8) may be made at the time the caveator is directed to commence proceedings or at any subsequent time.