PROBATE refers to the formal proof of a will, which in England has to take place at Somerset House, London, or at a district registry. The early jurisdiction of the English ecclesi astical courts over the probate of wills of personalty is discussed under WILL and ECCLESIASTICAL JURISDICTION. 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. Con tentious jurisdiction was given to county courts when the per sonal estate of the deceased was under £200 in value. The Judica ture Act 1873 merged the old court of probate in the probate divorce and admiralty division of the High Court of Justice. 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 pro pounded as the last will of the deceased. This formality is neces sary to enable the executor to administer the estate of his testa tor. 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 revoca tion. The executor may within 3o years be called upon to prove in solemn form. A person who doubts the validity of the will propounded may enter a caveat which while in force prevents any probate other than in solemn form. Separate representation may be granted in respect of real estate since the administration of Estates Act 1925, and of a trust estate only, but except or re gards trust estates a separate representation may be granted of a known insolvent estate. Under the Law of Property Act, 1925, S. 11, probate and letters of administration convey the legal estate to the personal representative, and this makes the real estate directly available for payment of debt. 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 (see New Ad ministration of Estates Act, 1925, ss 79, 8o) 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 ob tained 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 testamento annexe 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) be comes evidence, the original will being deposited in the principal registry at Somerset House, London. On grant of probate, estate duty is payable on the gross value of the personal estate and the English real estate (see ESTATE DUTIES). The act of 1881 enables any officer of inland revenue to grant probate where the personal estate does not exceed £300.
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.
In Scots law Confirmation includes both the probate and let ters of administration of English procedure. It forms the ex ecutor's legal title to ingather the estate. Originally confirmation of testaments of movables fell, as in England, under the cogniz ance of the Church courts. It is now part of the jurisdiction of the sheriff courts and is regulated by statutes, the principal of which are, the Confirmation and Probate Act 1858, the Sheriff Courts Act 1876, and Executors Act 1900. When the will is at tested and probation alluding to sects, forms for the execution of deeds, it proves itself, and the onus is on the person challenging it. In other cases the executor may be required to prove the validity of the will in the proceedings for confirmation.