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72.1 (1) This Part applies to probate causes and matters,

including applications for the rectification of a will, and

the other provisions of these Rules apply to those causes and matters subject to this Part.

(2) In this Part "probate action" means an action for the

grant of probate of the will, or letters of

administration of the estate, of a deceased person or

for the revocation of such a grant or for a decree

pronouncing for or against the validity of an alleged

will, not being an action which is non-contentious or

common form probate business; and

"will" includes a codicil.

How to commence probate proceedings

72.2 (1) Probate proceedings must be begun by issuing a fixed date

claim.

(2) The claim form must be indorsed with a statement of the

nature of the interest of the claimant and of the defendant in

the estate of the deceased to which the action relates.

(3) The claimant must file with his claim form his statement of case.

Parties to proceedings for revocation of grant

72.3 Every person who is entitled or claims to be entitled to administer

the estate of a deceased person under or by virtue of an unrevoked

grant of probate of his will or letters of administration of his estate

must be made a party to any proceedings for revocation of the grant.

Lodgment of grant in proceedings for revocation

72.4 (1) Where, at the commencement of proceedings for the

revocation of a grant of probate of the will or letters of

administration of the estate of a deceased person, the

probate or letters of administration, as the case may be,

have not been lodged in court, then -

(a) if the proceedings are commenced by a person to

whom the grant was made, he must lodge the

probate or letters of administration at the court

within 7 days after the issue of the claim; or

(b) if any defendant to the claim has the probate or

letters of administration in his possession or

under his control, he must lodge it or them

at the court within 14 days after the service

of the claim form upon him.

(2) Any person who fails to comply with paragraph (1) may, on the application of any party to the action, be

ordered by the court to lodge the probate or letters of

administration within a specified time; and any

person against whom such an order is made may not

be entitled to take any step in the proceedings

without the permission of the court until he has

complied with the order.

Affidavit of testamentary scripts

72.5 (1) Unless the court otherwise directs, the claimant and

every defendant who has entered an appearance in

probate proceedings must swear an affidavit—

(a) describing any testamentary script of the

deceased person, whose estate is the subject of

the action, of which he has any knowledge or, if

such be the case, stating that he knows of no

such script, and

(b) if any such script of which he has knowledge is

not in his possession or under his control, giving

the name and address of the person in whose

possession or under whose control it is or, if such

be the case, stating that he does not know the

name or address of that person.

(2) Any affidavit required by this rule must be filed, and

any testamentary script referred to therein which is in

the possession or under the control of the deponent

must be lodged at the court within 14 days after the

entry of an appearance by a defendant to the proceedings

or, if no defendant enters an appearance and the court

does not otherwise direct, before the first hearing.

(3) Where any testamentary script required by this rule

to be lodged or any part thereof is written in pencil,

then, unless the court otherwise directs, a facsimile

copy of that script, or of the page or pages thereof

containing the part written in pencil, must also be

lodged and the words which appear in pencil in the

original must be underlined in red ink in the copy.

(4) Except with the leave of the court, no party to probate

proceedings may be allowed to inspect an affidavit filed,

or any testamentary script lodged, by any other party to

the proceedings under this rule, unless and until an

affidavit sworn by him containing the information

referred to in paragraph (1) has been filed.

(5) In this rule "testamentary script" means a will or

draft thereof, written instructions for a will made by

or at the request or under the instructions of the

testator and any document purporting to be evidence

of the contents, or to be a copy, of a will which is

alleged to have been lost or destroyed.

Failure to enter appearance

72.6 (1) Part 12 does not apply to probate proceedings.

(2) Where any of several defendants to probate proceedings fails to enter an appearance or to file and serve a defence, the claimant may -

(a) after the time for entering an appearance or

filing a defence has expired; and

(b) upon filing an affidavit proving due service of

the claim form and statement of case on that

defendant,

proceed with the claim as if that defendant had entered

an appearance.

(3) Where the defendant, or all the defendants, to probate

proceedings, fails or fail to enter an appearance or

file and serve a defence, then, unless on the application

of the claimant the court orders the claim to be dismissed or discontinued, the claimant may after

the time limited for entering an appearance, or for

serving a defence, by the defendant apply to the court

for an order for trial of the proceedings.

(4) Before applying for an order under paragraph (3) the

claimant must file an affidavit proving due service of

the claim form and his statement of case on the

defendant.

(5) An application under paragraph (3) must be dealt with at

the first hearing.

(6) Where the court grants an order under paragraph (3),

it may direct the proceedings to be tried on affidavit

evidence.

Counterclaim

72.7 A defendant to probate proceedings who alleges that he

has any claim or is entitled to any relief or remedy in respect

of any matter relating to the grant of probate of the will, or

letters of administration of the estate, of the deceased person

which is the subject of the proceedings must add to his

defence a counterclaim in respect of that matter.

Contents of statements of case

72.8 (1) Where the claimant in probate proceedings disputes the

interest of a defendant he must allege in his statement of

case that he denies the interest of that defendant.

(2) In probate proceedings in which the interest by virtue

of which a party claims to be entitled to a grant of

letters of administration is disputed, the party

disputing that interest must show in his statement of

case that if the allegations made therein are proved

he would be entitled to an interest in the estate.

(3) Any party who pleads that at the time when a will,

the subject of the proceedings, was alleged to have

been executed the testator did not know and approve

of its contents must specify the nature of the case on

which he intends to rely, and no allegation in support

of that plea which would be relevant in support of

any of the following other pleas, that is to say -

(a) that the will was not duly executed; or

(b) that at the time of the execution of the will

the testator was not of sound mind, memory

and understanding; or

(c) that the execution of the will was obtained by

undue influence or fraud,

must be made by that party unless that other plea is

also set out in his statement of case.

Discontinuance and dismissal

72.9 (1) Part 38 does not apply in relation to probate

proceedings

(2) At any stage of the proceedings the court may, on

the application of the claimant or of any party to the

proceedings who has entered an appearance, order

the proceedings to be discontinued or dismissed on

such terms as to costs or otherwise as it thinks just,

and may further order that a grant of probate of the

will, or letters of administration of the estate, of the

deceased person, as the case may be, which is the

subject of the proceedings, be made to the person

entitled.

Compromise of action: trial on affidavit evidence

72.10 Where, whether before or after the service of the defence in

probate proceedings, the parties to the proceedings agree to a

compromise, the court may order the trial of the proceedings on affidavit evidence.

Application for order to bring in will, etc

72.11 (1) Any application in probate proceedings for an order under

section 22 of the Wills and Probate Ordinance Chap 8 No 2 is to be for an order requiring a person to bring a will or other

testamentary paper into court or to attend in court for examination.

(2) An application under paragraph (1) may be made without

notice but must be supported by evidence setting out the

grounds of the application.

(3) Any person against whom an order made under paragraph (1)

and who denies that the will or other testamentary paper referred

to in the order is in his possession or under his control may file

an affidavit to that effect.

Administration pendente lite

72.12 Where an order for a grant of administration is made under section

17 of the Wills and Probate Ordinance, Chap 8 No 2, Part 52 applies as

if the administrator were a receiver appointed by the court.

Probate counterclaim in other proceedings

72.13 (1) In this rule "probate counterclaim" means a counterclaim in

any claim other than probate proceedings by which the

defendant claims any such relief as is mentioned in rule

1(2).

(2) Subject to the following paragraphs, this Part applies

with the necessary modifications to a probate counterclaim

as it applies to probate proceedings.

(3) A probate counterclaim must contain a statement of the

nature of the interest of the defendant and of the plaintiff in

the estate of the deceased to which the counterclaim relates.