# 1911 Encyclopædia Britannica/Probate

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​PROBATE, in English law, the “proving” (Lat. probatio) of a will. The early jurisdiction of the English ecclesiastical courts over the probate of wills of personality is discussed under Will. The Court of Probate Act 1857 transferred the jurisdiction both voluntary and contentious of all ecclesiastical, royal peculiar, peculiar and manorial courts to the court of probate thereby constituted, created a judge and registrars of that court, abolished the old exclusive rights in testamentary matters of the advocates of Doctors’ Commons, and laid down rules of procedure. Contentious jurisdiction was given to county courts when the personal estate of the deceased was under £200 in value. The Judicature Act 1873 merged the old court of probate in the probate divorce and admiralty division of the High Court of justice. The division now consists of the president and one other judge. The practice of the division is mainly regulated by the rules of the Supreme Court 1883. Appeals lie to the court of appeal and thence to the House of Lords. Probate may be taken out either in common or solemn form. In the former 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 attestation clause declares that the formalities of the Wills Act have been complied with, or if other evidence to that effect is produced. Such grant is liable to revocation, but it is provided that any 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 thirty years be called upon to prove in solemn form, or a person who doubts the validity of the will propounded may enter a 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 The executor may however take out a summons to get the caveat “subducted” or withdrawn, but if an appearance to the summons is entered ​within six days to the summons the executor is then compelled to prove in solemn form. Probate in solemn form is a judgment of the court in favour of the will propounded, and is only revocable by the discovery of a later will. In order, therefore, to obtain such grant proceedings have to be taken by action, and witnesses produced in support of the will, and the action proceeds in the usual way.
The principal rules now obtaining as to probate are these. Probate, which since the Land 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 district registry, and should be obtained within six months after the testator's death. When no executor is named the will is not now invalid, as was once the case, but administration cum testament annexo is granted. The same course is pursued where the executor renounces or dies intestate before administering the estate of the deceased. After probate, the probate itself (as the official copy of the will is called) becomes evidence, the original will being deposited in the principal registry at Somerset House, London. On grant of probate, estate duty, denoted by a stamp on the affidavit sworn for that purpose, is payable. It varies according to the amount at which the estate of the deceased is fixed by the oath of the executor (see Estate Duty). The act of 1881 enables any officer of inland revenue to grant probate where the personal estate does not exceed £300.
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.
Scotland.—Confirmation includes both the probate and letters of administration of English procedure. Without confirmation by the court interference by the executor becomes a vitious intromission. Originally confirmation of testaments of movables fell, as in England, under the cognizance of the church courts. Such jurisdiction certainly existed at the time of regiam majestatem. This ecclesiastical right continued through the commissary court at Edinburgh (constituted by Queen Mary in 1563), and the local commissaries, until modern times when the jurisdiction of the courts was at first transferred and then abolished by a series of enactments from the Commissary Courts Act 1823 to the 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 £300 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.
United States.—Probate is granted in some states by the ordinary chancery or common law courts, but more frequently by courts of special jurisdiction, such as the prerogative court in New Jersey, the surrogates' court in New York, the orphans court in Pennsylvania.
“In a great majority of the states the original equitable jurisdiction over administrations is in all ordinary cases—without any special circumstances such as fraud, or without any other equitable feature such as trust—either expressly or practically abrogated. The courts of equity, in the absence of such special circumstances or distinctively equitable features, either do not possess or will not exercise the jurisdiction, but leave the whole 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, waste, and the like, or unless it is of such an essential nature that a probate court is incompetent to give adequate relief, or is one of which the probate court having taken cognizance has completely miscarried and failed to do justice by its decree, the courts of equity will refuse to interpose and to exercise whatever dormant powers they may possess, but will leave the subject matter antd the parties to the statutory forum which the legislature plainly regarded as sufficient and intended to be practically exclusive” (Rice's Probate Law, pp. 4 and 5).
Probate courts are in most if not all the states courts of record, having a public seal and a clerk (or the judge has authority to act as clerk); they issue process and execute their decrees by appropriate officers in the same manner as the common law and chancery courts. They sit at stated terms. They have 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 common law 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 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 settle a controversy by 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 side are citizens of a different state from the parties on the other side (Ellis v. Davis, 109 U.S. Reports, 485). Probate in solemn form, i.e. after due notice to all parties in interest is the almost universal form in use in the United States. One reason for this no doubt is that all documents affecting 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 property must be separately proven in the proper probate court in each state in which the real property is situated, unless statute dispenses with separate probate (each state being “foreign” to every other for this purpose). Copies of such will and probate should be filed also in the office of the 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 conveyance is made under a power in the will before probate a subsequent probate validates the conveyance (1906, Mackey v. Mackey, 63 Atl. Rep. 984).
In Illinois a court of equity has no inherent power to entertain a bill to contest a will (1906; O'Brien v. Bonfield, 220 Ill. Rep. 219).
In 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 direct proceeding after being filed for record more than five years in Missouri (1907; Cohen v. Herbert, 104 So. W. Rep. 84).