6th June 2023
Amendment of Order 79 Rule 27 – Abolition of Probate Officer’s power to appoint Committees of Persons with mental incapacity to extract Grants of Representation.
Erin International Probate Consultant Caroline McCall, in consultation with Christopher Lehane BL, advise of a significant rule change which affects applications where the person entitled to administer an estate of a deceased person lacks the mental capacity to extract a grant.
Whereas the Probate Officer prior to 25th May 2023 had the power under Order 79 rule 27 of the Rules of the Superior Courts (on applicant obtaining a letter consenting to his application from the Registrar of Wards of Court), to appoint a Committee for the purposes of extracting a Grant in the estate of the Deceased, limited for the use and benefit of the person with the mental incapacity and during that incapacity; that power has now been abolished by the substitution of a new Order 79 Rule 27.
Under the new substituted Order 79 Rule 27 application must now be made to the High Court for an Order pursuant to Section 27(4) of the Succession Act 1965. The reason for the change is clearly required given the passing of the 2015 Assisted Decision Making (Capacity) Act replacing the Wards of Court system, which deems legal capacity wholly lost by a new functional approach to capacity system whereby a person instead is assisted in exercising his decision-making. Given the power of the Probate Officer under the previous Order 79 Rule 27 was subject to the prior consent of the Registrar of Wards of Court and whilst useful in avoiding a Court application, it obviously now falls with the Wards of Court system.
This application may be made by the decision-making representative of a relevant person (as appointed under section 38 of the Assisted Decision Making (Capacity) Act 2015. It can equally be made by anyone the High Court considers appropriate in the circumstances, given the total discretion the Court has under Section 27(4) of the Succession Act; particularly attorneys of a registered EPA and all the more when they are also the next of kin of the person with the mental incapacity to extract the Grant. A registered EPA and order under section 38 only confer power to act within the estate of the person with the incapacity. They do not confer title to act as legal personal representative in the estate of the deceased, hence the need for the Section 27(4) order in that person’s estate. Applications under Section 27(4) of the Succession Act 1965 are made to the Probate Judge in her Monday Probate Motion List.
This rule changes is effective from 25th May 2023.
To download a copy of the amended Order 79 Rule 27 please click HERE
To download a copy of the revised Assisted Decision Making (Capacity) act 2015, please click HERE
Christopher Lehane B.L.
Caroline McCall, Erin International